Allahabad High Court
Rachit vs Union Of India 3 Others on 22 May, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:92105
RESERVED
A.F.R.
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
***
WRIT - A NO. 17724 OF 2023
Rachit ....Petitioner
Versus
Union of India and others ....Respondents
Appearance :-
For Petitioner : Mr. Prabhakar Awasthi, Advocate
Mr. Suresh Singh, Advocate
For Respondents : Mr. Ashok Trivedi, Advocate for respondents Nos. 2, 3 and 4
Ms. Annapurna Singh 'Chandel', Central Government Counsel for the Union of India
HON'BLE J.J. MUNIR, J.
The petitioner has applied for a mandamus to consider his case for compassionate appointment on account of his father's death in harness while in the employ of the respondent-Bank of Baroda.
2. The petitioner's father joined service of the Bank of Baroda, Khaga, Fatehpur Region, Fatehpur1 as a Peon on 09.10.1984. He was promoted from a Class IV post to a Class III post with the Bank. He was working as a Cashier in the year 2016. The petitioner's father died in harness on 21.02.2016. He left behind him a family of three - his widow, Smt. Gyanmati Devi and two sons, the petitioner, Rachit and his younger brother, Sachin.
3. It is the petitioner's case that his mother, being the only surviving adult in the family, moved an application on 10.01.2017 to the Branch Manager of the Bank, indicating that her elder son was 14 years old, and the younger, 11. It was also said that the family have been destituted and in the event, the petitioner's sons be regarded ineligible on account of their minority, their right to be considered must be postponed until a later date. The application desperately says in the end that either the petitioner's mother's candidature be considered or consideration of the petitioner's right be postponed, keeping it intact.
4. During the interregnum, nothing happened. The petitioner passed his High School Examination in the year 2020 and the Intermediate Examination in the year 2022. He earned his Bachelor of Science Degree from the Professor Rajendra Singh (Rajju Bhaiya) University, Prayagraj in the examination of 2022-23. The petitioner, after attaining majority, contacted the Branch Office of the Bank to gather progress about the consideration of his claim. The Branch Office advised the petitioner to move an application in the proforma prescribed for claiming compassionate appointment. The petitioner moved an application in the appropriate proforma on 20.01.2021. The petitioner's application in the proper proforma along with the checklist was forwarded on 02.03.2021. Despite submission of the application on 20.01.2021 along with the checklist separately and a 'No Objection' by the other family members, the claim has not been considered by the Bank, and therefore, the petitioner, being a member of the deceased's family, who say that they have not been able to tide over the resultant economic crisis, has prayed that this Court may issue a mandamus, directing the respondents to consider his claim.
5. A counter affidavit has been filed on behalf of the Bank, after a notice of motion was issued.
6. In the brief facts, it is averred that a sum of ₹17,09,549 has been paid in all towards terminal benefits to the deceased's widow, Smt. Gyanmati Devi. The widow is also being paid family pension in the sum of ₹17,332 per month. It is not denied that when the deceased Shyam Lal passed away, the scheme dated 18.02.2016 for compassionate appointment or payment of ex gratia or financial relief was in force. It is pleaded that in order to seek compassionate appointment, the applicant must have completed 18 years of age. It is also the respondents' case that for entitlement to compassionate appointment or ex gratia financial relief to the dependant of a deceased employee, the deceased should not have crossed the age of 55 years at the time of his demise in harness. Since in the present case, the deceased was aged 57 years, the benefit of compassionate scheme or ex gratia financial scheme is not available to his dependants.
7. The petitioner's mother moved an application on 01.02.2021, saying that earlier the date of birth disclosed for the petitioner in her deceased husband's service record as 24.12.2003 is incorrect and the correct date of birth of the petitioner is 24.12.2002. It has been castigated by the respondents as a suppression of fact. It is also asserted as a suppression of fact that the petitioner's mother, on three earlier occasions, had moved applications seeking compassionate appointment, all of which were declined on 31.03.2017, 10.04.2017 and 13.03.2018. It is pleaded in paragraph No. 21 that when the deceased's widow applied for compassionate appointment for her son on earlier occasions, she was advised that it is not permissible for him to be appointed, inasmuch as on 21.02.2016, he was aged 12 years, 1 month and 27 days and by time he attained the age of 17 years, the period of five years would have already expired.
8. A rejoinder affidavit was filed on behalf of the petitioner. The parties having exchanged affidavits, the writ petition was heard finally on 19.12.2023. Judgment was reserved.
9. Heard Mr. Prabhakar Awasthi along with Mr. Suresh Singh, learned Counsel for the petitioner, Mr. Ashok Trivedi, learned Counsel appearing for respondents Nos. 2, 3 and 4, and Mr. Satish Chandra Singh, Advocate holding brief of Ms. Annapurna Singh Chandel, learned Counsel appearing on behalf of respondent No. 1.
10. Upon hearing learned Counsel for parties, what this Court finds is that respondents have not been very fair in considering the petitioner's claim for compassionate appointment under the scheme that was in vogue. The plea taken that since the petitioner's father died at the age of 57 years, the petitioner is not eligible under the scheme, is a patent misreading of the scheme. The scheme for compassionate appointment, called the Scheme for Compassionate Appointment or Payment of Ex-Gratia Financial Relief to Dependants of Deceased Employees on Compassionate Grounds2, is annexed as Annexure CA-3 to the counter affidavit filed on behalf of respondents Nos. 2 and 3. It is annexed to a circular letter of the Bank addressed to all branches and offices of theirs. A perusal of Paragraph No. 1 of the Scheme, that speaks about coverage, reads :
1.1 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 Quarters Hospitals/Panel of Doctors nominated by the Bank for the purpose).
1.2 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 OR 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.
11. Upon a reading of paragraphs Nos. 1.1 and 1.2 together, particularly with reference to Clauses (a) and (b) of Paragraph 1.1, it is evident that a dependant family member of a permanent employee of the Bank is one defined with reference to a permanent employee, who dies while in service, including a person who dies by suicide. Clause (b) of paragraph 1.1 says that a dependant family member could be one in relation to a person who has retired on medical grounds due to incapacitation before reaching the age of 55 years. Likewise, the word "or" used in Paragraph 1.2 of the scheme makes it evident that the upper age limit for the employee in order to entitle his dependant family members under the Scheme, is prescribed in the contingency where the employee is retired on medical grounds due to incapacitation. It does not apply to a case of death in harness. To the clear understanding of this Court, death in harness has nothing to do with the age of the employee, who dies while still in the Bank's service. If this is the criteria by which the petitioner's claim has been judged by the respondents, we have no hesitation in saying that it has been misjudged by a manifestly illegal understanding of their own scheme by the Bank. So far as the other contention is concerned, that the petitioner was a minor and by the time he turned 17, the maximum permissible period of limitation of five years would be over is, again, based on a misreading of paragraph No. 8 of the scheme. Paragraph No. 8 of the Scheme reads :
8. TIME LIMIT FOR CONSIDERING APPLICATIONS:
8.1 Request for appointment should be received by the Bank within one year from the date of death of the employee
8.2 Application for employment under the Scheme from eligible dependents can normally be considered upto five years from the date of death or retirement on medical grounds and decision to be taken on merits of each case.
8.3 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 (in cases where the dependant's eligibility is not there immediately). however, in any case, not before 05.08.2014 as the scheme is applicable from 05.08.2014 onwards 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 appointment on compassionate grounds in such cases (cases of death / medical retirement which occurred more than 5 years back) will therefore, be taken only at the level of MD & CEO
12. A reading of sub-para (3) of Paragraph No. 8 of the Scheme shows that the usual period for consideration is up to five years from the date of death. However, the concluding words of Paragraph No. 8.3 would show that consideration beyond five years is also possible, but that decision has to be taken by the Managing Director and Chief Executive Officer3 of the Bank. It is said in Paragraph No. 8.3 that if the family have been able to survive for a period of five years, it would normally be taken as adequate proof that the family has some dependable means for sustenance. It is for this reason that cases beyond the period five years have to be dealt with a great deal of circumspection. The decision to consider beyond five years has to be taken by the MD & CEO of the Bank. The fact that the decision to consider beyond five years can be taken, whoever might be the officer competent, the Bank cannot take a stand that beyond five years, no consideration is permissible.
13. Then, there are some general rules applicable for evaluating cases for compassionate appointment. These provisions are carried in paragraph No. 16 of the Scheme. Paragraph No. 16 reads :
16. GENERAL:
16.1 Appointment made on grounds of compassion to be done in such a way that persons appointed to the post oo have the essential educational anc technical qualifications and experience required for the post consistent with the requirement of maintenance of efficiency of administration.
16.2 It is not the intention to restrict employment of a family member of the deceased or medically retired sub-staff employee to an erstwhile sub-staff post only As such, a family member of such erstwhile sub-staff employee can be appointed to a clerical post for which he/she is educationally qualified, provided a vacancy in clerical post exists for this purpose.
16.3 An application for compassionate appointment shall, however not be rejected merely on the ground that the family of the employee has received the benefits due the benefits under the various welfare schemes. While considering a request for appointment on compassionate grounds, a balanced and objective assessment of the financial condition of the family has to be made taking into account its assets and liabilities (including the benefits received under the various welfare schemes mentioned above) and all other relevant factors such as the presence of an earning member, size of the family, etc.
16.4 Compassionate appointment shall be made available to the person concerned if there is a vacancy meant for compassionate appointment and he or she is found eligible and suitable under the scheme.
16.5 Requests for compassionate appointment consequent on death or retirement on medical grounds of erstwhile sub-staff may be considered with greater sympathy by applying relaxed standards depending on the facts and circumstances of the case.
16.6 Compassionate appointment will have precedence over absorption of surplus employees and regularization of temporary employees.
14. The stand in the counter affidavit to the effect that a lump sum of ₹17,09,549 have been paid to the widow and she is being paid a family pension in the sum of ₹17,332 is not enough to infer that the family are not living in penurious circumstances and their means are sufficient to sustain themselves in life. The deceased was a Class III employee and a sum of rupees seventeen lacs and odd is not such a princely sum in these hard days that the same can serve as an assurance about sustenance for the family. The pension too is a meagre sum. What has to be borne in mind is the fact that the deceased has two sons and a widow. While the pension paid to her and the lump sum payment may barely serve the widow's purpose to keep her body and soul together, it may not really serve the family to provide for their basic needs. The needs here would be the sons' education. The petitioner's younger brother is three years younger to him age. He might still be requiring funds to study. The family could be in need of other things, like roof and shelter, about which, there has been no inquiry. There is no inquiry disclosed about alternate sources of income.
15. Paragraph 16.3 of the Scheme says that a claim for compassionate appointment cannot be rejected on the ground that the family of the deceased have received benefits due to various welfare schemes. There has to be a balanced and objective assessment of the family's financial condition, taking into account their assets and liabilities, which would, of course, include benefits received from the Bank and other relevant factors, such as the presence of an earning member, size of the family. As we have remarked, the needs of the family like money for provision of roof and shelter and education of children, is very relevant. Unfortunately, the counter affidavit shows a very nonchalant approach that the Bank have adopted in resisting the petitioner's claim. They have not passed any orders on his claim as yet, as no order is annexed. It is possibly so, because the Bank have taken the claim to be time-barred. Even that order has not been passed. We have already held that the claim is not irredeemably time-barred and can be considered by the appropriate officials of the Bank, which, in this case, may be the MD & CEO of the Bank. This Court thinks that if the petitioner's claim on account of it being belated beyond five years is required by the Scheme to be considered by the MD & CEO of the Bank, he ought to consider it, bearing in mind the guidance in this judgment.
16. In the result, this petition succeeds and stands allowed. A mandamus is issued to the Assistant General Manager, Bank of Baroda, Regional Office, Fatehpur, the Regional Head, Bank of Baroda, Fatehpur Region, Fatehpur and the Senior Branch Manager, Bank of Baroda, Branch Khaga, District Fatehpur to ensure, amongst themselves, that the MD & CEO of the Bank is immediately apprised of the petitioner's claim, which shall be submitted to him and the claim decided by the MD & CEO of the Bank within one month from the date of receipt of a copy of this order by him through any of the respondents Nos. 2, 3 and 4, to all of whom this order shall be communicated. After the necessary decision is taken by the MD & CEO, the Assistant General Manager, Bank of Baroda, Regional Office, Fatehpur shall ensure that that orders of the MD & CEO are communicated to the petitioner within fifteen days of the MD & CEO recording his decision on the petitioner's claim.
17. There shall be no order as to costs.
18. The Registrar (Compliance) is directed to communicate this order to the Assistant General Manager, Bank of Baroda, Regional Office, Fatehpur, the Regional Head, Bank of Baroda, Fatehpur Region, Fatehpur and the Senior Branch Manager, Bank of Baroda, Branch Khaga, District Fatehpur.
Allahabad
May 22, 2024
I. Batabyal
(J.J. MUNIR, J.)
