Bombay High Court
Nitin Yohan Arawade vs Central Bank Of Inda Through ... on 4 August, 2021
Bench: Ravindra V. Ghuge, S. G. Mehare
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.12352 OF 2018
Mr.Nitin s/o Yohan Arawade,
Age : 35 years, Occupation : Unemployed,
F/5 Rauish Row Housing Society,
Kinetic Chowk, Nagar Pune Road,
Ahmednagar-414005.
Email ID : [email protected]
...PETITIONER
-VERSUS-
Central Bank of India.
Central Office,
Chandramukhi Nariman Point,
Mumbai-400021.
Through its General Manager (HRD),
Website : www.centralbankofindia.co.in
Email ID : [email protected]
[email protected]
...RESPONDENT
...
Advocate for the Petitioner : Shri Upadhye Vinayak Narayan
Advocate for the Respondent : Shri Warad Sunil V.
...
CORAM : RAVINDRA V. GHUGE
&
S.G. MEHARE, JJ.
DATE :- 04th August, 2021
Oral Judgment (Per Ravindra V. Ghuge, J.):-
1. Rule. Rule made returnable forthwith and heard
finally by the consent of the parties.
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2. The petitioner has put forth prayer clauses A and
as under :-
"A) That a writ of mandamus or writ in the nature
of mandamus or any other appropriate writ,
order or direction under Article 226 & 227 of
the Constitution of India be issued calling for
the records and proceedings from the
Respondent being an order dated 25.01.2018
and communicated through a letter dated
31.03.2018 marked at Annexure F and examine
the legality, validity and propriety thereof and
be pleased to quash and/or set aside the same;
B) Issue direction/ order to reconsider the claim of
the petitioner for compassionate appointment in
accordance with law and as per the scheme in
existence."
3. The father of the petitioner, namely, Yohan Paulas
Arawade was in employment with the respondent/ Central Bank
of India as the Special Assistant at the Kolegaon Branch, District
Ahmednagar. He put in 34 years and 02 months in employment
when he opted for Voluntary Retirement (VRS) on medical
grounds since the Permanent Medical Board of the respondent/
Bank examined him and certified that he was "completely and
permanently incapacitated" to perform any type of services in the
respondent/ Bank. He was suffering from Impaired Cognitive
Profile. The certificate issued by the Dean of Sasoon General
Hospital, Pune dated 07.04.2015 indicated that his incapacity
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cannot be attributed to or said to be accelerated or aggravated by
irregular or intemperate habits.
4. The respondent/ Bank floated a scheme titled as "Sir
Sorabji Pochkhanawala Memorial Death Relief Scheme for
Employees of Central Bank of India", on 05.08.2014. This
scheme is prepared and implemented by the respondent through
various circulars issued by the Human Resources Development
Department and this aspect is undisputed.
5. The petitioner states that his father had met with a
severe accident in 2014 and on account of the same, he had to
undergo extensive medical treatment, which cost him an amount
of Rs.10 lac towards medical expenses. The respondent/ Bank
assisted him by providing Rs.1.5 lac. Along with the petitioner,
there were in all six dependents on the employment of his father
including one sister of the petitioner, who got married and
subsequently, was divorced by her husband thereby, returning to
the father's home.
6. The petitioner submits that on 25.06.2015, the father
of the petitioner was granted the benefit of VRS on medical
ground and relieved from employment. The petitioner preferred
an application on 20.07.2015 in a printed format supplied to him,
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setting out the dependents on his father's income and the
financial condition of the family. Since the petitioner was in
employment with the ICICI Bank in clerical category, he was
informed by the respondent/ Bank that if he resigns from the said
employment, he would be entitled for seeking compassionate
appointment with the respondent. His application was, therefore,
kept pending. Since the petitioner found that his career prospects
with the respondent were better than the job that he had with the
ICICI Bank, he tendered his resignation on 02.03.2016 and
intimated the respondent about the said fact and prayed that his
application for compassionate appointment may be considered.
7. The petitioner further submits that by the impugned
communication dated 31.03.2018, the petitioner was informed by
the Branch Manager of the respondent that his application for
seeking appointment on compassionate ground has been rejected
only for the reason that the family of the ex-employee was not
indigent. It is, therefore, submitted that the right of the petitioner
to be inducted in employment of the respondent on
compassionate ground, cannot be defeated merely because the
family is not indigent. Reliance is placed on the following
judgments :-
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(a) Canara Bank and another vs. M. Mahesh Kumar,
AIR 2015 SC 2411.
(b) Balbir Kaur and another vs. Steel Authority of India
Ltd. And others, AIR 2000 SC 1596.
(c) Yogesh Nagraoji Ugale vs. State of Maharashtra,
2019 STPL 9892 SC.
(d) Shattuppa L. Patil vs. Central Bank of India, Writ
Petition No.1549/2006, judgment dated 23.10.2007
(High Court of Karnataka).
(e) Smt.Meena Dhaigude vs. Maha Pravandhak, State
Bank of India, W.P. No.7249/2012, judgment dated
26.07.2021 (Madhya Pradesh High Court, Bench at
Indore).
8. The learned advocate representing the respondent
Bank draws our attention to the affidavit in reply dated
29.01.2021 filed by the Chief Manager of the respondent Bank.
He submits that though the impugned order does not even refer
to the earlier employment of the petitioner, this aspect cannot be
lost sight of since one member of the family was already
employed elsewhere. He then submits that the compassionate
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appointment cannot be granted to a person since he does not have
special right or claim in view of the judicial pronouncement in
the State Bank of India vs. Raj Kumar, 2010 (11) SCC 661 . It is
conceded that the father of the petitioner had met with an
accident in March, 2014. Since he was eligible for VRS due to
medical incapacitation, he was relieved from service on
25.06.2015. It is further stated that the compassionate
appointment scheme which applies even to an employee, who
has obtained VRS due to medical incapacitation, was introduced
w.e.f. 05.08.2014. The concerned employee was relieved from
employment on 25.06.2015. However, since it was noted that the
family of the petitioner had received retiral benefits and was not
indigent, the application of the petitioner was rejected.
9. We have considered the extensive submissions
advanced. The respondent has relied upon the particulars of the
scheme enabling compassionate appointment or payment of
lump-sum ex-gratia amount. We, therefore, refer to page 23 of
the petition paper book which indicates the following clause
rendering the petitioner eligible for appointment on
compassionate grounds:-
"1. Scheme for compassionate appointment for dependent
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family member of an employee, (a) .............., (b) retires on
medical grounds due to incapacitation before reaching the age of
55 years."
It is undisputed that as the father of the petitioner
was granted VRS on medical grounds before reaching the age of
55 years, the petitioner was eligible for such appointment.
10. Clause 4 on page 23 further indicates as under :-
"The family has the options i.e. compassionate
appointment and payment of lump-sum ex-gratia amount.
However, any of these two options can be used only when the
other conditions of compassionate appointment are met."
We, therefore, find that the petitioner has two
options of either seeking compassionate appointment or
receiving the payment of lump-sum ex-gratia amount. He opted
for the first.
11. The learned advocate for the respondent has then
pointed out clause 5 below Annexure-I, "Frequently Asked
Questions on compassionate appointment, as regards the
eligibility of the family". Clause 5 (Eligibility) has two sub-
clauses as under :-
"5. Eligibility.
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5.1 The family is indigent and deserves immediate
assistance for relief from financial destitution;
and
5.2 Applicant for compassionate appointment
should be eligible and suitable for the post in
all respects under the provisions of the relevant
Recruitment Rules.
Similarly, payment of lumpsum ex-gratia
amount can be used only when other conditions
of compassionate appointment are met."
12. Based on the above, the learned advocate for the
respondent has canvassed that as the family of the petitioner was
not found to be indigent, his application for compassionate
appointment was rejected.
13. Having perused the above reproduced provisions, it
is obvious that the respondent offers two options to the family/
eligible member of such family, of either seeking lump-sum ex-
gratia payment or compassionate appointment. Both the benefits
are not made available to the family or an eligible member of the
family. It, therefore, makes things more clear that either the
family opts for payment of lump-sum ex-gratia amount or
projects a member of the family, who is eligible, as a candidate
for compassionate appointment. We are reading clause 5
reproduced above and it's sub-clauses in the light of this
backdrop. Clause 5.1 indicates that the family has to be indigent
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and deserves immediate assistance for relief from financial
destitution. This can be reasonably and logically co-related with
the grant of payment of lump-sum ex-gratia amount. Clause 5.2
deals with the compassionate appointment to an eligible
candidate, who is suitable for the post as per the Recruitment
Rules.
14. There is no dispute that the petitioner's application
has not been rejected on the ground that he was earlier in
employment with ICICI or was found ineligible for appointment
under the relevant Recruitment Rules. The petitioner has made a
categoric statement that he resigned from the employment in the
clerical cadre with the ICICI Bank only because he was apprised
by the authorities of the respondent Bank that his application
cannot be considered unless he resigns from the ICICI Bank.
Since he desired to opt for compassionate appointment for job
security, he promptly resigned from the ICICI Bank and
approached the respondent requesting for considering his claim.
The impugned order has been delivered like a bolt from the blue.
Never before had the respondent ever indicated to the petitioner
that his application for compassionate appointment would not be
entertained if his family was not living in abject poverty and was
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indigent.
15. We find that the respondent authorities have mixed
up two issues. It is unheard of that the compassionate
appointment could be refused to an eligible member of the
family which has lost a sole bread-earner, if the family was not
indigent. We have not come across any such example when the
compassionate appointment is refused to an eligible member
only on the ground that the family has funds to survive and
therefore, would not need a source of income. In our view,
considering the crystallized position of law, compassionate
appointment has multiple effects. Firstly, it takes care of the
sudden financial loss to the family. Secondly, as the sole earning
source has stopped, compassionate appointment leads to
continuation of the source of earning so that the family can
depend upon a definite income through such employment.
16. The learned advocate for the respondent has
canvassed that the petitioner's family has received gratuity
amount, provident fund accumulations and pension. We are
unable to accede to the submission by the respondent that
because of such payments, an eligible person can be refused
compassionate appointment. Gratuity amounts, provident fund
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accumulations and monthly pension (if eligible) are the legal
rights of the employee/family, if the sole earner has either died in
harness or has been medically incapacitated leading to his
retirement. Provident fund accumulations cannot be taken away.
Gratuity amount cannot be attached, save and except by
following the due process of law. The pension cannot be stopped.
Payment of these amounts cannot be considered as an
impediment or an embargo on the appointment of an eligible
member of the family on compassionate basis.
17. Considering the scheme placed before us, we find it
logical and reasonable to conclude that the respondent Bank
would be justified in assessing the financial status of the family
of the employee, who has lost source of income, only for
granting financial aid in the nature of lump-sum ex-gratia
amount. If the family has other source of income and has
sufficient funds available, the respondent may take a stand that
the payment of lump-sum ex-gratia amount is not necessary.
However, whether, the family is indigent or not, cannot be the
basis for refusing compassionate appointment to a candidate,
who is otherwise eligible for such appointment under the
scheme.
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18. The view taken by the Honourable Supreme Court
in Raj Kumar (supra) does not lay down such law, as is
canvassed by the respondent. In Raj Kumar (supra), the
Honourable Supreme Court has held that compassionate
appointment is not a source of recruitment and it is an exception
to the general rule that the recruitment should be on the basis of
merit.
19. While entertaining this Writ Petition, we are,
therefore, considering the following factors :-
(a) Ex-employee of the respondent (father of the
petitioner) was less than 55 years of age when the Permanent
Medical Board attached to the respondent Bank approved that he
was medically incapacitated and could not be continued in
service.
(b) The compassionate appointment scheme was
introduced by the respondent Bank on 05.08.2014.
(c) The father of the petitioner was relieved on
25.06.2015.
(d) The petitioner quit his temporary job with the ICICI
Bank in the clerical cadre so as to opt for the benefit of
compassionate appointment to which he was eligible.
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(e) The petitioner had sought compassionate
appointment and had not opted for payment of lump-sum ex-
gratia amount.
(f) The ground that the family should be indigent so as
to grant the compassionate appointment, is unacceptable to us
since the comprehensive reading of the scheme convinces us that
the clause of granting lump-sum ex-gratia payment can be co-
related with the family being indigent.
(g) Appointment on compassionate ground to an
eligible candidate cannot be refused only because the financial
background of the family may be good.
(h) The claim of the petitioner is not rejected because he
was in ICICI Bank earlier.
20. In view of the above, this Writ Petition is partly
allowed. The communication dated 31.03.2018 and the office
order dated 20.05.2018 stand quashed and set aside. We,
therefore, issue the following directions :-
(a) The petitioner is eligible for compassionate
appointment.
(b) Since we are informed that in all 164 employees of
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the respondent have died after introduction of the compassionate
appointment scheme and only 38 applications for compassionate
appointment have been received, the claim of the petitioner shall
be considered as per the seniority of the filing of the application
for compassionate appointment, but from the date of the
petitioner having quit his clerical job with the ICICI Bank.
(c) The respondent/ Bank, if is unable to appoint the
petitioner on compassionate ground on or before 31.12.2021,
shall apprise the petitioner on quarterly basis as regards the status
of his claim for compassionate appointment till such appointment
is made and his claim shall not be overlooked or by-passed.
21. Rule is made absolute in the above terms.
kps (S.G. MEHARE, J.) (RAVINDRA V. GHUGE, J.)
