V.Mallikarjuna, vs The Chairman,
2021 Latest Caselaw 1831 AP

      THE HON'BLE SRI JUSTICE BATTU DEVANAND

             WRIT PETITION No. 1159 of 2016

O R D E R:

This Writ Petition has been filed by the petitioner under

Article 226 of the Constitution of India for the following relief:

"....this Hon'ble Court may be pleased to issue an order, direction more particularly in the nature of Writ of Mandamus and set aside the impugned order No.(HR-1) 278, dated 08.05.2015 issued by the 3rd respondent as illegal, arbitrary and consequently direct the respondent authorities to consider the case of the petitioner herein for appointment on compassionate grounds forthwith and be pleased to pass such other order, orders, and as deemed fit and proper in the interest of justice."

2) A counter-affidavit has been filed by the respondents.

3) Heard Sri K. Sudhakar Reddy, learned counsel for the

petitioner and Ms. V. Uma Devi, learned Standing Counsel for

State Bank of India appearing for the respondents and

perused the material available on record.

4) The case of the petitioner is that the father of the

petitioner, who worked as Head Messenger in Market Yard

Branch of State Bank of India, Adoni Branch, died on

26.11.2012 in harness. Thereafter the petitioner made a

representation, dated 20.01.2013 to the 4th respondent

requesting to provide employment on compassionate

grounds. The mother of the petitioner made a presentation to

the Assistant General Manager, SBI/Tirupati seeking

appointment on compassionate grounds to the petitioner.

The petitioner also submitted another representation, dated

05.05.2014 to the 1st respondent seeking for appointment on

compassionate grounds. The respondents by their letter,

dated 03.11.2014 rejected the request of the petitioner.

Aggrieved by the same, the present writ petition is filed.

5) Learned counsel for the petitioner submits that the

father of the petitioner died on 26.11.2012 in harness leaving

behind his wife, petitioner, two other sons and two unmarried

daughters and that there is no other earning member in the

family.

6) Learned counsel for the petitioner would submit that the

Indian Bank Association vide letter No.CIRHR&IR/2014-15/

532/576, dated 11.08.2014 communicated to all the Chief

Executives of all Public Sector Banks with regard to scheme of

compassionate appointment on compassionate ground in

Public Sector Banks after receiving approval from the

Government of India vide its letter DOF No.18/2/2013-IR,

dated 07.08.2014. The copy of the scheme for adoption was

sent to all banks for approval of the Board of Bank. In the

light of the said scheme, the petitioner case has to be

considered to provide compassionate appointment in favour of

the petitioner.

7) On the other hand, learned Standing Counsel for the

respondents submits that as per the existing instructions, the

compassionate appointment scheme has been discontinued

with effect from 04.08.2005 and replaced with SBI scheme for

payment of ex-gratia lump sum amount in lieu of

compassionate appointment and advised the petitioner to

submit application in the prescribed format for payment of ex-

gratia. Learned Standing Counsel contends that the revised

scheme for compassionate appointment is applicable in

exceptional cases which are specifically stated in the Circular

Instructions, which is effective from 05.08.2014. The said

scheme is not applicable to the petitioner's case, as the date

of death of petitioner's father (i.e.) 26.11.2012 was prior to

the introduction of compassionate appointment on exceptional

cases (i.e.) 05.08.2014 and also the case did not fall under

the category of exceptional case as specifically envisaged in

the circular. As such, the claim of the petitioner was rejected.

Therefore, the learned Standing Counsel sought for dismissal

of the writ petition.

8) Having heard the submissions of the learned counsel for

both sides and upon perusing the material available on

record, it is an admitted fact that the father of the petitioner

died on 26.11.2012 in harness, leaving behind his wife,

petitioner, two other sons and two unmarried daughters.

9) The respondent Bank declined the claim of the petitioner

for compassionate appointment, as the same is non-existent

and replaced by scheme of payment of ex-gratia lump sum

amount. However, the petitioner is continuously making

representations seeking appointment on compassionate

grounds.

10) While the representations of the petitioner are pending

for consideration, it appears that the Indian Banks Association

vide their letter No.HR&IR/KC/Govt./532/9274, dated

22.04.2014 and 13.06.2014 sent proposal to the Government

of India for revising the compassionate appointment scheme

in Public Sector Banks. The Director, Department of Financial

Services, Ministry of Finance, Government of India, New

Delhi, vide letter in DOF No.18/2/2013-IR, dated 07.08.2014

informed Indian Banks Association that their proposal has

been examined and decided to convey the approval of the

Government on the proposal of IBA as follows:

(1) To open the compassionate appointment in PSBs on

the lines of Central Government;

(2) Discontinuing the provision of Ex-gratia in lieu of

compassionate appointment in PSBs.

Accordingly, IBA is requested to take appropriate action

to circulate the revised scheme to all PSBs for adoption with

the approval of their respective Boards. The scheme shall be

applicable from 05.08.2014. It is also mentioned in that

letter that in the letter, dated 07.08.2014 stating that with

the approval of the Hon'ble Finance Minister this letter was

issued.

Later, the State Bank of India approached the

Government of India proposing for the need to continue the

earlier provisions of scheme i.e., compassionate appointment

in exceptional cases or payment of Ex-gratia lump sum

amount in lieu of compassionate appointments. The

Department of Financial Services, Ministry of Finance,

Government of India vide letter, dated 05.12.2014 with the

approval of Finance Minister informed that all Public Sector

Banks can have both the options (i.e.) the compassionate

appointment or payment of lump sum ex-gratia amount.

However, it is made clear that any of these two options can

be used only when the other conditions of compassionate

appointments are met.

Accordingly, following receipt of communication from

Ministry of Finance, GOI, vide letter F No.18/2/2013-IR, dated

05.12.2014, the Executive Committee of the Central Board of

the State Bank of India in its meeting held on 23.12.2014 has

approved continuation of following two schemes duly modified

as under:

(i) A. Scheme for compassionate appointment in

exceptional cases (as per annexure-I and B1, B2;

B. Scheme for payment of ex-gratia lump sum

amount in lieu of compassionate appointment with

the following directions;

C. The dependents of deceased employees falling

under scheme (A) i.e., where death is treated as in

"Exceptional Circumstances" will have the option to

chose either compassionate appointment or Ex-

gratia lump sum amount as per the eligibility under

the scheme.

However, in all other cases of death as also in case of

premature retirement due to incapacitation before reaching

the age of 55 years only, ex-gratia lumpsum amount will been

paid as per the eligibility and no compassionate appointment

will be considered.

11) It is mentioned in the scheme of compassionate

appointment of State Bank of India that the whole object of

granting compassionate employment in such exceptional

cases is to enable the family to tide over the sudden crisis due

to death of bread winner. The mere death of an employee in

harness does not entitle his family to such a serious of

livelihood. The object is to offer compassionate appointment

only when the bank is satisfied that the financial condition of

the family is such that but for the provision of employment

the family will not able to meet the crisis.

12) At para No.11 of the SBI scheme for compassionate

appointment on compassionate grounds in exceptional cases-

2014, it is provided as under:

11. TIME LIMIT FOR CONSIDERING APPLICATIONS

11.1 Application for employment under the scheme from

eligible dependent will be considered upto five years from the

date of death.

11.2 Request for compassionate appointment under

exceptional circumstances may be considered even when the

death of the employee took place long back. While

considering such belated requests, it should be kept in view

that the concept of compassionate appointment under

exceptional circumstances is largely related to the need for

immediate assistance to the family of the employee in order

to relieve it from economic distress.

13) It is clear that as per the scheme formulated by the

respondents, there is option to the dependents of the

deceased employee to offer for compassionate appointment or

for payment of Ex-gratia lumpsum amount in lieu of

compassionate appointment. In the present case the family

of the dependents opted for payment under compassionate

scheme. The objection of the respondent Bank to consider

the case of the petitioner for compassionate appointment is

on the ground that as on the date of the death of the father of

the petitioner, the Scheme-2014 is not in existence and at

that time the scheme for payment of Ex-gratia lumpsum

amount is only available, and as such, the Scheme-2014 is

not applicable to consider the case of the petitioner.

14) In view of the fact that in the Scheme-2014 of the

respondent Bank at para 11.2 wherein it is provided that the

request for compassionate appointment under exceptional

circumstances may be considered even when the death of the

employee took place long back, the case of the petitioner

ought to have considered by the respondent in view of the

fact that the death of father of petitioner is on 26.11.2012

and the SBI Scheme for compassionate appointment on

compassionate ground in exceptional cases, 2014 is came into

effect from 05.08.2014. Hence, the case the petitioner can be

considered under the scheme in the light of the procedure

provided at para 11.2 of the scheme.

15) Learned counsel for the petitioner relied on a judgment

of the Hon'ble Supreme Court of India in State Bank of

India and another vs. Raj Kumar1, in which it was held at

para No.10 as extracted hereunder:

10. "In this case the employee died in October, 2004, the application was made only in June, 2005. The application was not even by the respondent, but by his mother. Therefore, it was necessary to ascertain whether respondent really wanted the appointment, whether he possessed the eligibility, and whether any post was available. Within two months of the application, the new scheme came into force and the old scheme was abolished. The new scheme specifically provided that all pending applications will be considered under the new scheme. Therefore it has to be held that the new scheme which came into force on 04.08.2005 alone will apply even in respect of pending applications." (emphasis is ours)

(2010)11 SCC661

16) On the other hand, learned Standing Counsel for

respondents relied on the following decisions to support their

case:

(1) Indian Bank and others vs. Promila and another2;

(2) Canara Bank and another vs. M. Mahesh Kumar3;

(3) State of Himachal Pradesh and another vs. Parkash Chand4 and

(4) State of Madhya Pradesh and others vs. Amit Shrivas5.

17) This Court has gone through the judgments relied by the

learned Standing Counsel for respondents and with great

respect, this Court is fully agreeing with the proposition of law

laid down by the Hon'ble Apex Court in those judgments, but

the facts and circumstances of the present case are different.

18) In Balbir Kaur & Anr. vs. Steel Authority of India Ltd. &

Ors., (2000) 6 SCC 493, while dealing with the application

made by the widow for employment on compassionate ground

applicable to the Steel Authority of India, contention raised

(2020) 2 SCC 729

(2015)7 SCC 412

(2019) 4 SCC 285

(2020) 10 SCC 496

was that since she is entitled to get the benefit under Family

Benefit Scheme assuring monthly payment to the family of

the deceased employee, the request for compassionate

appointment cannot be acceded to. Rejecting that contention

in paragraph (13), this Court held as under:-

"13. ....But in our view this Family Benefit Scheme cannot in any way be equated with the benefit of compassionate appointments. The sudden jerk in the family by reason of the death of the breadearner can only be absorbed by some lump-sum amount being made available to the family this is rather unfortunate but this is a reality. The feeling of security drops to zero on the death of the breadearner and insecurity thereafter reigns and it is at that juncture if some lump-sum amount is made available with a compassionate appointment, the grief-stricken family may find some solace to the mental agony and manage its affairs in the normal course of events. It is not that monetary benefit would be the replacement of the breadearner, but that would undoubtedly bring some solace to the situation." Referring to Steel Authority of India Ltd.'s case, High Court has rightly held that the grant of family pension or payment of terminal benefits cannot be treated as a substitute for providing employment assistance. The High Court also observed that it is not the case of the bank that the respondents' family is having any other income to negate their claim for appointment on compassionate ground.

19) In the present case, the father of petitioner worked as

Head Messenger in the respondent Bank. He died in harness

leaving behind wife, three sons and two unmarried daughters.

After considering the post held by the deceased and the

number of the members of the family he has to maintain, one

can understand the financial position of that family. Due to

sudden demise of the bread winner of the family, the family of

the deceased employee has to face serious financial problems.

The respondent Bank formulated the SBI Scheme for

compassionate appointment on compassionate ground in

exceptional cases-2014 with a laudable object of granting

compassionate appointment in such exceptional cases is to

enable the family to tide over the sudden crisis due to the

death of a bread winner.

20) As and when the respondent Bank introduced such

scheme for the benefit of family members of the deceased

employees, rejecting the claim of the petitioner by the

respondent authorities on the ground that the petitioner is not

entitled for compassionate appointment is unjustified.

21) In view of the procedure provided at para No.11.2 of the

scheme and by following the judgment of the Hon'ble Apex

Court in the case of Rajkumar (1 supra), this Court is of the

considered opinion that rejecting the claim of the petitioner

for compassionate appointment is against to the scheme

provided by the respondent Bank. As such, we hold that the

impugned order No.(HR-1) 278, dated 08.05.2015 issued by

the 3rd respondent is illegal, arbitrary and unjust.

22) Accordingly, this writ petition is disposed of with the

following directions:

(i) The impugned order No.(HR-1) 278, dated

08.05.2015 is set aside;

(ii) The respondents are directed to consider the claim of

the petitioner for compassionate appointment in any suitable

post, within a period of six (06) weeks from the date of

receipt of copy of the order; and

(iii) There is no order as to costs.

Consequently, miscellaneous petitions pending, if any, in

this writ petition shall stand closed.

________________________ JUSTICE BATTU DEVANAND Date: 16.04.2021

PGR

THE HONOURABLE SRI JUSTICE BATTU DEVANAND

Orders in WRIT PETITION No.1159 of 2016

Date :16.04.2021

PGR