The Chairman vs V Mallikarjuna
2021 Latest Caselaw 3293 AP

       IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI

     HON'BLE Mr. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE

                                         &

               HON'BLE Mr. JUSTICE NINALA JAYASURYA

                       WRIT APPEAL No.387 of 2021

                        (Through Video-Conferencing)

The Chairman, State Bank of India, State Bank
Bhawan, Madame Cama Road, Mumbai - 400 021,
and others                                                       ... Appellants

                                       Versus

V. Mallikarjuna, S/o. late V. Narasimha,
Aged 39 years, R/o.H.No.1/339/33A,
Arun Jyothi Nagar, Adoni - 518 301,
Kurnool District, Andhra Pradesh                               ... Respondent


Counsel for the appellants         :         Mr. Venkata Rama Rao Kota

Counsel for the respondent         :         Mr. K. Sudhakar Reddy


Date of hearing                    :         09.08.2021

Date of judgment                   :


                                 JUDGMENT

(Arup Kumar Goswami, CJ)

This writ appeal is presented against a judgment dated 16.04.2021

passed by the learned single Judge in W.P.No.1159 of 2016 disposing of the

writ petition by setting aside order No. (HR-1) 278 dated 08.05.2015 and

directing the respondents (appellants herein) to consider the claim of the writ

petitioner for compassionate appointment in any suitable post within a period

of six weeks from the date of receipt of the order.

2. Heard Mr. Venkata Rama Rao Kota, learned counsel for the

appellants and Mr. K. Sudhakar Reddy, learned counsel for the

respondent/writ petitioner.

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3. The father of the writ petitioner died in harness on 26.11.2012 while

working as Head Messenger in Market Yard Branch of State Bank of India,

Adoni Branch, leaving behind his wife, three sons including the writ petitioner

and two unmarried daughters. They belong to Scheduled Caste community.

Subsequent to the death of his father, the writ petitioner made a

representation dated 20.01.2013 to respondent No.4 (appellant No.4) for

compassionate appointment and the mother of the writ petitioner had also

made a representation to the Assistant General Manager, SBI/Tirupati,

praying for appointment of the writ petitioner on compassionate ground. The

writ petitioner had also made a representation dated 05.05.2014 to

respondent No.1 (appellant No.1). In response to the said representation

dated 05.05.2014, it was informed to the writ petitioner by a letter dated

03.11.2014 that the scheme for compassionate appointment was

discontinued with effect from 04.08.2005 and the same was replaced by a

scheme called "Scheme for payment of Ex-gratia amount in lieu of

appointment on Compassionate grounds" and, accordingly, advised the writ

petitioner to submit application in the prescribed format for payment of

ex-gratia. On being approached by the writ petitioner, the case of the writ

petitioner was espoused by All India Scheduled Castes and Scheduled

Tribes Bank Employees' Federation (R) by addressing a letter dated

27.01.2015 requesting compassionate appointment in favour of the writ

petitioner. The said representation was disposed of by order dated

08.05.2015, which came to be impugned in the writ petition.

4. By the aforesaid order dated 08.05.2015, it was communicated as

follows:

"a) The scheme for compassionate appointment has been

discontinued in the Bank from 04.08.2005 and it was replaced by

the Scheme for payment of ex-gratia lumpsum amount.

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                                                                  W.A.No.387 of 2021

b) As such, your representation for compassionate appointment

cannot be considered as the same was discontinued from

04.08.2005.

c) As regards the judgment of 1989 quoted in the representation,

this was prior to 04.08.2005 and hence not relevant in the

present context.

d) The revised scheme for Compassionate Appointment in

exceptional cases, effective from 05.08.2014 is not applicable to

the present case as the date of death (i.e., 26.11.2012) was prior

to 05.08.2014."

5. In the affidavit filed by the appellants to the writ petition, it is pleaded

that the scheme called "SBI Scheme for Compassionate Appointment on

compassionate ground in exceptional cases-2014" (for short, "the Scheme-

2014") was issued by the bank vide e-Circular No.CDO/P&HRD-

PM/65/2014-15 providing that only in exceptional circumstances,

compassionate appointment has to be provided. It is reiterated that the

Scheme-2014 for compassionate appointment in exceptional cases effective

from 05.08.2014 is not applicable, as father of the writ petitioner died on

26.11.2012 and, that apart, the case does not fall under the category of

exceptional case as specifically envisaged in the revised scheme. The bank

had introduced "Scheme for Payment of Ex-Gratia Lumpsum Amount" with

effect from 04.08.2005 in lieu of compassionate appointment. However, as

the Government had advised all public sector banks to have both the

Schemes, viz., compassionate appointment and payment of ex-gratia

lumpsum amount, the appellant-bank had decided to continue the scheme

for compassionate appointment in exceptional cases.

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                                                                W.A.No.387 of 2021

6. The learned single Judge relied on para 11.2 of the Scheme-2014

which provides that the request for compassionate appointment in

exceptional cases may be considered even when the death of the employee

took place long back and, accordingly, held that the case of the writ

petitioner ought to have been considered by the appellants for

compassionate appointment. The learned single Judge opined that the

decisions in Indian Bank and others v. Promila and another, reported in

(2020) 2 SCC 729, Canara Bank and another v. M. Mahesh Kumar,

reported in (2015) 7 SCC 412, State of Himachal Pradesh and another v.

Parkash Chand, reported in (2019) 4 SCC 285, are not applicable to the

facts and circumstances of the case and relied on the decisions in Balbir

Kaur & Anr v. Steel Authority of India Ltd., & Ors., reported in

(2000) 6 SCC 493 and State Bank of India v. Raj Kumar, reported in

(2010) 11 SCC 661.

7. In paragraphs 19, 20 & 21, the learned single Judge observed as

follows:

"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 5 HCJ & NJS,J W.A.No.387 of 2021

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."

8. It is to be noticed that the scheme for appointment of dependents of

the deceased employees was originally introduced in the Bank with effect

from 01.01.1979 with amendments and modifications being carried out from

time to time.

9. At this juncture, it will be appropriate to extract relevant portion of the

"SBI Scheme for Payment of Ex-Gratia Lumpsum Amount":

"This Scheme for appointment of dependents of employees dying

in harness/retired on medical grounds has been throwing up

some unanticipated problems for the Bank as also for the

dependent family members. While the Bank does not generally

get employees who satisfy the requirements of working in

computerised environment, many a time, the families of our 6 HCJ & NJS,J W.A.No.387 of 2021

deceased employees also do not get immediate support because

the process of employment takes some time. In some cases, no

dependent of the deceased employee is eligible to take up the

job immediately and as such, there is no immediate support to

the dependent family.

To overcome these problems, immediately monetary assistance

in lieu of compassionate appointment may be the best

alternative. The Executive Committee of the Central Board in its

meeting held on 4th August, 2005 has approved a scheme for

payment of ex-gratia lumpsum amount in lieu of appointment on

compassionate grounds named as "SBI Scheme for Payment of

Ex-Gratia Lumpsum Amount". The new Scheme has come into

force with effect from today i.e. 4th August, 2005. This scheme

will replace our existing Compassionate Appointment Scheme

(referred in paragraph 1 above) and no request for

compassionate appointment shall be entertained or considered

by the Bank under any circumstance with effect from today i.e.

4th August, 2005.

We enclose, for your information and necessary action our

scheme for payment of ex-gratia lumpsum amount named "SBI

Scheme for Payment of Ex-Gratia Lumpsum Amount". The

Scheme will be applicable in the following cases:

      i)     Employees dying in harness,


      ii)    Employees     seeking     premature   retirement     due    to

incapacitation before reaching the age of 55 years".

10. From Clause 2 under the head "Background" of the Scheme-2014, it

appears that on and from 04.08.2005, two schemes, both dated 04.08.2005, 7 HCJ & NJS,J W.A.No.387 of 2021

one under the name and style of SBI Scheme for Compassionate

Appointment in Exceptional Circumstances and the other, SBI Scheme for

Payment of Ex-Gratia Lumpsum Amount in lieu of Compassionate

Appointment, were parallelly being followed. It appears that SBI Scheme for

Compassionate Appointment in Exceptional Circumstances was

retrospectively made effective from 04.08.2005, the date on which the SBI

Scheme of Payment of Ex-gratia Lumpsum Amount replaced the earlier

scheme of compassionate appointment, vide e-Circular dated 13.05.2011.

SBI Scheme for Compassionate Appointment in Exceptional Circumstances

is applicable where an employee dies while performing official duty, as a

result of violence, terrorism, robbery or dacoity or where an employee dies

within five years of first appointment or before reaching the age of 30 years,

which is latter, leaving a dependent spouse and/or minor children. The SBI

Scheme for Payment of Ex-Gratia Lumpsum Amount was modified and both

the Scheme-2014 and modified SBI Scheme for Payment of Ex-Gratia

Lumpsum Amount in lieu of Compassionate Appointment were effective from

05.08.2014.

11. For the purpose of this case, it is not necessary to dilate into the

various provisions of the Scheme-2014. However, having regard to the

contours of the controversy, it will be necessary to consider Clause 5 and

Clause 11 of the Scheme-2014, which read as follows:

"5. COVERAGE

5.1. To a dependent family member of permanent employee of

the Bank who

(i) dies while performing official duty, as a result of violence,

terrorism, robbery or dacoity; or 8 HCJ & NJS,J W.A.No.387 of 2021

(ii) dies within five years of first appointment or before reaching

the age of 30 years, whichever is latter, leaving a dependent

spouse and/or minor children.

6. XXXXX

7. XXXXX

8. XXXXX

9. XXXXX

10. XXXXX

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.

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. However, five years shall be the outside

limit in all cases and no proposals for compassionate

appointment of a dependent will be considered after five

years from the date of death."

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                                                                W.A.No.387 of 2021

12. A combined reading of Clauses 11.1 and 11.2 would go to show that

application for employment under the Scheme-2014 from eligible dependent

would be considered upto five years from the date of death and no proposals

for compassionate appointment of a dependent will be considered after five

years from the date of death. When five years is said to be the outer limit in

all cases, first sentence in Clause 11.2 to the effect that request for

compassionate appointment in exceptional circumstances may be

considered even when death of the employee took place long back gives a

misleading impression that compassionate appointment under exceptional

circumstances may be considered even beyond five years.

13. When the father of the writ petitioner died on 26.11.2012, SBI Scheme

for Compassionate Appointment in Exceptional Circumstances as circulated

vide e-Circular dated 13.05.2011, was in force. However, not even a

reference was made to the revised Scheme for Compassionate Appointment

in Exceptional Cases as notified vide e-Circular dated 13.05.2011, with effect

from 04.08.2005, though the aforesaid scheme of compassionate

appointment was applicable. When the order of rejection was communicated

on 03.11.2014, e-Circular dated 27.12.2014 forwarding the Scheme-2014

had not come into being.

14. A perusal of the letter dated 08.05.2015 goes to show that the

ostensible reason for not considering the case of the writ petitioner was that

the scheme for compassionate appointment was discontinued from

04.08.2005 and it was replaced by the Scheme for Payment of Ex-gratia

Lumpsum Amount. The revised Scheme for Compassionate Appointment on

Compassionate Grounds in exceptional cases, effective from 05.08.2014

was held to be not applicable as the date of death of the father of the writ

petitioner was 26.11.2012, which was prior to 05.08.2014.

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                                                               W.A.No.387 of 2021

15. In Raj Kumar (supra), the Hon'ble Supreme Court observed that it is

well settled that appointment on compassionate grounds is not a source of

recruitment and that it is an exception to the general rule that recruitment to

public services should be on the basis of merit by open invitation providing

equal opportunity to all eligible persons to participate in the selection

process. The dependants of employees, who die in harness, do not have

any special claim or right to employment, except by way of the concession

that may be extended by the employer under the Rules or by a separate

scheme, to enable the family of the deceased to get over the sudden

financial crisis. The claim for compassionate appointment is therefore

traceable only to the scheme framed by the employer for such employment

and there is no right whatsoever outside such scheme. An appointment

under the scheme can be made only if the scheme is in force and not after it

is abolished/withdrawn. In M. Mahesh Kumar (supra), the Hon'ble Supreme

Court held that cause of action to be considered for compassionate

appointment arose when the particular 'Dying in Harness Scheme' dated

08.05.1993 in that case was in force, under which the writ petitioner therein

was not found to be eligible for compassionate appointment. The Hon'ble

Supreme Court held that his case could not be considered as per the

subsequent scheme, which came into being in 2005 providing for ex-gratia

payment. In Promila (supra), the Hon'ble Supreme Court reiterated the

proposition laid down in M. Mahesh Kumar (supra) that relevant scheme

prevalent on the date of demise of the employee is applicable.

16. In Parkash Chand (supra), the Hon'ble Supreme Court reiterated that

compassionate appointment is not a matter of right, but must be governed by

the terms on which the State lays down the policy of offering employment

assistance to a member of the family of a deceased government employee.

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                                                                 W.A.No.387 of 2021

17. In State of Madhya Pradesh v. Amit Shrivas (Civil Appeal No.8564

of 2015), the issue was, whether a junior work charged employee would be

entitled to compassionate appointment. The High Court had directed

consideration of the case of the writ petitioner for compassionate

appointment. His claim for compassionate appointment was rejected by the

Hon'ble Supreme Court on the ground that he was not a regular Government

employee within the meaning of Rule 2(b) of the Madhya Pradesh Civil

Service Conduct Rules, 1965. It was observed by the Hon'ble Supreme

Court that High Court had lost sight of the distinction between a permanent

status and a regular status.

18. In N.S. Santhosh v. State of Karnataka & ors., (Civil Appeal

Nos.9280-9281 of 2014), the Hon'ble Supreme Court observed as follows:

"A two judges bench headed by Justice Uday U. Lalit noticed the

Supreme Court's view in SBI vs. Raj Kumar (supra) and MCB

Gramin Bank vs. Chakrawarti Singh (supra) on one side and the

contrary view in Canara Bank & Anr. vs. M. Mahesh

Kumar (supra) and felt the necessity of resolution of the

conflicting question on whether the norms applicable on the date

of death or on the date of consideration of application should

apply. Accordingly, in State Bank of India & Ors. vs. Sheo

Shankar Tewari the Court referred the matter for consideration

by a larger Bench so that the conflicting views could be

reconciled.

Applying the law governing compassionate appointment culled

out from the above cited judgments, our opinion on the point at

issue is that the norms, prevailing on the date of consideration of

the application, should be the basis for consideration of claim for

compassionate appointment. A dependent of a government 12 HCJ & NJS,J W.A.No.387 of 2021

employee, in the absence of any vested right accruing on the

death of the government employee, can only demand

consideration of his/her application. He is however disentitled to

seek consideration in accordance with the norms as applicable,

on the day of death of the government employee."

19. The exceptional circumstances under which compassionate

appointment can be granted under both e-Circular dated 27.12.2014

and e-Circular dated 13.05.2011 being same, controversy as to whether

norms applicable on the date of death or on the date of consideration should

apply will not really impact the case of the petitioner. In terms of the decision

in N.S. Santhosh (supra), however, the ground shown that the revised

scheme for Compassionate Appointment in exceptional cases, effective from

05.08.2014 is not applicable to the present case as the date of death (i.e.,

26.11.2012) was prior to 05.08.2014, cannot be sustained.

20. Though in paragraph 6 of the affidavit filed in support of the writ

petition, it is stated that e-Circular was issued to all the branches of the State

Bank of India stating that in exceptional circumstances, compassionate

appointment has to be provided and that the respondents had not

considered the case of the writ petitioner, it is not the case projected by the

writ petitioner that his case comes within the parameters of exceptional

circumstances, either under the e-Circular dated 27.12.2014 or under

e-Circular dated 13.05.2011. The appellants in paragraph 4 of the affidavit

had stated that the case of the writ petitioner does not fall under the category

of exceptional circumstances as specifically envisaged in the e-Circular.

Though the grounds of rejection did not say so, since the writ petitioner did

not contend that his case fell within the parameters of the exceptional

circumstances set-out under the aforesaid e-Circulars, the writ petitioner is 13 HCJ & NJS,J W.A.No.387 of 2021

not entitled to be considered under Scheme-2014 for compassionate

appointment.

21. Reliance placed by the learned single Judge on paragraph 13 of

Balbir Kaur (supra), in our considered opinion, is not attracted in the facts

and circumstances of the case, inasmuch as request for compassionate

appointment was denied only on the ground that the applicant therein was

entitled to Family Benefit Scheme. The Hon'ble Supreme Court in

Raj Kumar (supra), had categorically laid down that claim for compassionate

appointment is traceable only to the scheme framed by the employer for

such employment and there is no right whatsoever outside such scheme.

When the Scheme(s) provided compassionate appointment only in

exceptional circumstances as notified vide e-Circular dated 13.05.2011 and

under Scheme-2014, unless the condition of exceptional circumstances is

fulfilled, claim for compassionate appointment will not be tenable.

22. In view of the aforesaid discussion, the order of the learned single

Judge is set aside. The writ appeal is allowed. The respondent/writ

petitioner is, however, permitted to submit an application for payment of ex-

gratia lumpsum amount in terms of SBI Scheme for Payment of Ex-Gratia

Lumpsum Amount and in the event of filing of any such application, the same

shall be considered within a period of two months from the date of such

application. No order as to costs. Pending miscellaneous applications, if

any, shall stand closed.

ARUP KUMAR GOSWAMI, CJ                              NINALA JAYASURYA, J

MRR