Chattisgarh High Court

Gendram Baghel vs Chhattisgarh Gramin Bank And Ors on 18 October, 2022

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                                                                                             AFR

                   HIGH COURT OF CHHATTISGARH, BILASPUR
                            WP(S) No. 1685 of 2014

                              Order Reserved on 22/07/2022
                              Order Delivered on 18/10/2022

     Gendram Baghel S/o. Late Puniram Baghel, Aged about 35 years, R/o.
     Village Mukta, Tahsil and Police Station Jaijaipur, District Janjgir-
     Champa (CG)
                                                                        ---------PETITIONER

                                             VERSUS
     1. Chhattisgarh Gramin Bank, through Its Chairman, 15-Recreation
        Raod, Choubey Colony, Raipur District Raipur (CG)
     2. General Manager (Administration) Chhattisgarh Gramin Bank, Head
        Office 15- Recreation Road, Choubey Colony, Raipur District Raipur
        (CG)
     3. Branch Manager, Chhattisgarh Gramin Bank, Branch Tendukona,
        Tahsil and District Mahasamund (CG)
                                                                  ----------RESPONDENTS
     ----------------------------------------------------------------------------------------------

For the Petitioner : Mr. K.N. Nande, Advocate For the Respondents : Mr. B.D. Guru, Advocate

----------------------------------------------------------------------------------------------

Hon'ble Shri Justice Narendra Kumar Vyas CAV Order

1. The petitioner has filed the present petition against the inaction of the

respondents by which respondent authorities have denied the claim of

the petitioner for grant of compassionate appointment and he is

directed to accept the ex-gratia lump sump amount in lieu of

appointment on the ground of compassionate appointment.

2. Facts of the case, in short, are that petitioner's father late Puniram

Baghel was working as Field Officer with Chhattisgarh Gramin Bank,

Branch Tendukona (Mahasamund), who expired on 30.04.2005. After

death of his father, the petitioner has applied for compassionate

appointment before the respondents by contending that after death of

his father, he did not have any means of livelihood, he has liability to

lookaffter his family members and there is no earning member in his

family. Therefore, his claim for grant of compassionate appointment

may be considered. But the respondents have not considered his

claim, thereafter, the petitioner filed an application for grant of

compassionate appointment 30.12.2007. The petitioner again filed a

representation 28.09.2006 and on 14.06.2007 but till date the

respondents have not given any response and not decided the

application of the petitioner. The petitioner has submitted no objection

certificate of his family members before the respondents bank and

thereafter the respondent bank wrote a letter to the petitioner to accept

ex-gratia lump sum amount in lieu of compassionate appointment vide

its letter dated 25.05.2007. Again, the bank wrote a letter to the

petitioner to fill up the form and deposit the same within 15 days to the

respondent bank for ex-gratia amount in lieu of compassionate

appointment as reflected vide memo dated 31.10.2007.

3. Again on 30.04.2013, the petitioner filed a representation before the

respondents stating that if no action is taken for grant of

compassionate appointment then he will approach the Court of law.

The respondents authorities have considered the application and vide

letter 17.08.2013 directed him to accept ex-gratia amount, which will

be payable after verification of the facts of his case. Thus, the

respondents have completely ousted the petitioner from the zone of

consideration for compassionate appointment in a very arbitrary

manner and rejected the claim of the petitioner for grant of

compassionate appointment directing him to accept the ex-gratia

amount, therefore, the petitioner has filed this petition.

4. Learned counsel for the petitioner would submit that petitioner's father

expired on 30.04.2005 and new policy for grant of ex-gratia in lieu of

compassionate appointment has been introduced on 18.05.2017 i.e.

after death of petitioner's father, therefore, his case should have been

considered as per the policy prevailing on the date of death of

petitioner's father. Learned counsel for the petitioner has further

submitted that respondents bank has provided compassionate

appointment to the persons whose father expired when the policy of

compassionate appointment was not in existence and new policy

granting ex-gratia has been entroduced and implemented by the Bank,

therefore, Bank cannot discriminate the petitioner and asked him to

accept the ex-gratia amount in lieu of compassionate appointment.

This is the discrimination between similarly situated persons therefore,

the action of the bank insisting for accepting ex-gratia needs to be

interfered by this Court and direction be issued to the bank to consider

his case for grant of compassionate appointment as per the policy

prevailing on 30.04.2005. Learned counsel for the petitioner would

further draw the attention of this Court to the memo dated 14.02.2012

(P/15) to demonstrate that the compassionate appointment has been

granted to the member of deceased employee's family on 14.02.2012

even after enforcement of new scheme. He would further submit that

respondent bank on the one hand directing the petitioner to accept the

ex-gratia amount denying his claim for compassionate appointment but

on the other hand the respondent bank has given compassionate

appointment to Smt. Archna Sharma on 06.03.2006 and Smt. Indira

Sharma on 13.07.2006 and a separate list dated 17.06.2008 to this

effect has also been filed by the petitioner. To buttress his contention,

counsel for the petitioner has relied upon the judgments passed by the

Supreme Court in the case of Indian Bank and Others vs. Promila

and Anr. (2020) 2 SCC 729 and Suneel Kumar vs. State of UP and

Others (2022) SCC online SC 999.

5. On the other hand learned counsel for the respondent bank would

submit that the respondent bank has framed new policy on 18.05.2007

for payment of ex-gratia in lieu of appointment on compassionate

appointment in Chhattisgarh Gramin Bank and this policy has been

made in pursuance of letter issued by NABARD dated 13.07.2006,

Sponsored banks letter dated 20.07.2006 and RRB letter dated

09.06.2006 and an agreement with Indian Bank Association on

31.07.2004. This policy has been made effective and approved on

23.03.2007, and according to the policy ex-gratia amount has to be

paid in lieu of grant of compassionate appointment, therefore, the

claim of the petitioner for grant of compassionate appointment

deserves to be dismissed. He would submit that this policy dated

18.05.2007 will be applicable to all the pending applications for grant

of compassionate appointment and would draw attention of this Court

to the relevant clause of the policy which reads as under:-

rnkuqlkj] lapkyd e.My ds vuqeksnu fnukad [email protected]@2007 ls gekjs cSad esa lsok;qDrksa dh lsok ds nkSjku e`R;q dh n"kk esa ^^NRrhlx<+ xzkeh.k cSad esa vuqdEik fu;qfDr ds LFkku ij Ex-gratia dh ,deq"r vuqxzg jkf"k Hkqxrku dh ;kstuk-**

(Scheme for payment of Ex-gratia (Lump-sum amount) in lieu of appointment on compassionate ground in Chhattisgarh Gramin Bank).

vuqeksnu frfFk ls izHkko"khy dj nh x;h gSA

;kstuk dh izHkko"kkhy frfFk ij cSad esa vuqdEik fu;[email protected],deq"r vkfFkZd lgk;rk ds yfEcr leLr vkosnuksa dk fuiVku bl ;kstuk ds izko/kku ds vuqlkj fd;k tk;sxkA

6. This Court vide its order dated 06.08.2021 had directed the bank to file

an affidavit why the petitioner is not entitled to grant of compassionate

appointment as per scheme on 30.04.2005. In pursuance of direction

issued by this Court, The General Manger of the Bank has filed his

affidavit wherein he has said in paragraph-4 which reads as under;-

4. That during the pendency of the application the new scheme dated 18.05.2007 come into existence, by which the scheme of compassionate appointment has been stopped and scheme of "Lump Sum Ex-gratia" to the family members has been introduced. There is a specific provision in the new scheme that all the pending application will be considered in accordance with new scheme dt 18.05.2007. Hence, the claim of the compassionate appointment cannot be considered at this stage, whereas the case of the petitioner can only considered under the new scheme dated 18.05.2007, Lump Sum Ex-gratia"

7. Learned counsel for the respondent bank would further submit that since

the petitioner's claim for compassionate appointment cannot be

considered in terms of the new policy dated 18.05.2007 which

specifically provides that all the applications which are pending before

the authorities for consideration and would be decided according to the

new policy and would submit that there is no illegality on the part of the

bank to direct the petitioner to submit form for accepting ex-gratia amount

and would pray for dismissal of the petition.

8. I have heard learned counsel for the parties and perused the records.

9. It is not in dispute that earlier view of the Hon'ble Supreme Court that

application for grant of compassionate appointment has to be considered

as per the terms of the policy or circular prevailing at the time of death of

government servant. This issue is no more res-integra as the Hon'ble

Supreme Court in catena of judgments has taken the view in case of

Indian Bank and Others vs. Promila and Anr. (2020) 2 SCC 729 and

same view has been reiterated by Hon'ble Supreme Court in the case of

Suneel Kumar vs. State of UP and Others (2022) SCC online SC 999.

Again Hon'ble Supreme Court in the case of State of Madhya

Pradesh and Others v. Ashish Awasthi (2022) 2 SCC 157. But the

Hon'ble Supreme Court in case of N.C. Santosh vs. State of Karnataka

and Ors (2020) 7 SCC 617 has considered this issue rendered by a

Bench headed by three Hon'ble Judges of Supreme Court where the

Hon'ble Supreme Court has said that the subsequent policy which has

been made applicable to the all the pending applications then the case of

the compassionate appointment has to be considered as per new policy.

In the new policy, there is specific clause which provides for grant of ex-

gratia in lieu of compassionate appointment. The Hon'ble Supreme Court

in case of N.C. Santhosh (supra) has held in paragraphs 14 to 19 which

is as under:-

14. This Court in SBI vs. Raj Kumar3 while reiterating that no aspirant has a vested right to claim compassionate appointment, declared that the norms that are in force, when the application is actually considered, will be applicable. The employer's right to modify the scheme depending on its policies was recognized in this judgment. Similarly in MCB Gramin Bank vs. Chakrawarti Singh4 this Court reiterated that compassionate appointment has to be considered in accordance with the prevalent scheme and no aspirant can claim that his case should be considered as per the scheme existing on the date of death of the Government employee.

15. However in Canara Bank & Anr. vs. M. Mahesh Kumar in the context of major shift in policy, whereunder, instead of compassionate appointment (envisaged by the scheme dated 8.5.1993), ex gratia payment was proposed (under the circular dated

14.02.2005), the Court adopted a different approach. Noticing the extinguishment of, the right to claim appointment, this Court held the "dying in harness scheme" which was prevalent on the death of the employee, be the basis for consideration.

16. A two judges bench headed by Justice Uday U.

Lalit noticed the Supreme Court's view in SBI v. 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 of Bank of India and Ors.vs. Sheo Shankar Tewari 6 the Court referred the matter for consideration by a larger Bench so that the conflicting views could be reconciled.

17. The above discussion suggest that the view taken in Canara Bank & Anr. vs. M. Mahesh Kumar (supra) is to be reconciled with the contrary view of the coordinate bench, in the two earlier judgments. Therefore, notwithstanding the strong reliance placed by the appellants counsel on Canara Bank & Anr. vs. M. Mahesh Kumar (supra) as also the opinion of the learned Single Judge of the Karnataka High Court in Uday Krishna Naik vs. State of Karnataka & Ors 7, it can not be said that the appellants claim should be considered under the unamended provisions of the Rules prevailing on the date of death of the Government employee.

18. In the most recent judgment in State of Himachal Pradesh & Anr. vs. Shashi Kumar 8 the earlier decisions governing the principles of compassionate appointment were discussed and analysed. Speaking for the bench, Dr. Justice D.Y. Chandrachud reiterated that appointment to any public post in the service of the State has to be made on the basis of principles in accord with Articles 14 and 16 of the Constitution and compassionate appointment is an exception to the general rule. The Dependent of a deceased government employee are made eligible by virtue of the policy on compassionate appointment and they must fulfill the norms laid down by the State's policy.

19. 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 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.

10. The Hon'ble Supreme Court relying on the judgment in the case of N.C.

Santhosh (supra) again considered in case of Director of Treasuries in

Karnataka and Anr. vs. V. Somyashree (2021) SCC online 704 has

held at paragraph 19 which is as under:-

19. From the aforesaid rules it can be seen that only 'unmarried daughter' and 'widowed daughter' who were dependent upon the deceased female Government servant at the time of her death and living with her can be said to be 'dependent' of a deceased Government servant and that 'an unmarried daughter' and 'widowed daughter' only can be said to be eligible for appointment on compassionate ground in the case of death of the female Government servant. Rule 2 and Rule 3 reproduced hereinabove do not include 'divorced daughter' as eligible for appointment on compassionate ground and even as 'dependent'. As observed hereinabove and even as held by this Court in the case of N.C. Santhosh (Supra), the norms prevailing on the date of consideration of the application should be the basis of consideration of claim for compassionate appointment. The word 'divorced daughter' has been added subsequently by Amendment, 2021. Therefore, at the relevant time when the deceased employee died and when the original writ petitioner - respondent herein made an application for appointment on compassionate ground the 'divorced daughter' were not eligible for appointment on compassionate ground and the 'divorced daughter' was not within the definition of 'dependent.'

11. Again the Hon'ble Supreme Court in the case of State of Uttar Pradesh

and Ors vs. Premlata (2022)1 SCC 30 has held in paragraph 8 and 9

which read as under:-

8. While considering the issue involved in the present appeal, the law laid down by this court on compassionate ground on the death of the deceased employee are required to be referred to and considered. In the recent decision this court in Civil Appeal No.5122 of 2021 in the case of the Director of Treasuries in Karnataka & Anr. vs. Somashree, had

occasion to consider the principle governing the grant of appointment on compassionate ground. After referring to the decision of this court in N.C. Santhosh vs. State of Karnataka and Ors. reported in (2020) 7 SCC 617, this Court has summarized the principle governing the grant of appointment on compassionate ground as under:-

"10.1. that the compassionate appointment is an exception to the general rule;

10.2. that no aspirant has a right to compassionate appointment;

10.3. the appointment to any public post in the service of the State has to be made on the basis of the principle in accordance with Articles 14 and 16 of the Constitution of India;

10.4. appointment on compassionate ground can be made only on fulfilling the norms laid down by the State's policy and/or satisfaction of the eligibility criteria as per the policy; 10.5 the norms prevailing on the date of the consideration of the application should be the basis for consideration of claim for compassionate appointment.

9. As per the law laid down by this court in catena of decisions on the appointment on compassionate ground, for all the government vacancies equal opportunity should be provided to all aspirants as mandated under Article 14 and 16 of the Constitution. However, appointment on compassionate ground offered to a dependent of a deceased employee is an exception to the said norms. The compassionate ground is a concession and not a right.

12. Hon'ble Division Bench of this Court in the case of Purendra Kumar

Sinha and others vs. State of Chhattisgarh and Others in WPS No.

6689 of 2018 on 06.09.2022 has held in paragraph 63, 67 and 68

which read as under:-

63. it is to be noticed that the decisions in Promila & Another (supra),N.C. Santosh (supra) and Ashish Awasthi (supra), came to be delivered after the reference was made to a larger Bench in Sheo Shankar Tewari (supra). In Promila & Another (supra), Amit Shrivas (supra) and Ashish Awasthi (supra), reference made to a larger Bench was not noticed.

67. It is seen that with regard to the question as to whether the Policy in force on the date of death of the government employee is to be applied or the Policy at the time of consideration of the application for compassionate appointment is to be considered, there is a divergence of opinion. It is already noticed that a reference was already made in Sheo Shankar Tewai (supra) for consideration of this issue by at least a Bench of minimum three Hon'ble Judges. It is to be noticed that a three Judge Bench of the Hon'ble Supreme Court had taken a view that it is the scheme that is holding the field on the date of consideration has to be applied. After noticing the judgment in N.C. Santosh (supra) delivered by a three-Judge Bench, a two-Judge Bench in Bheemesh alias Bheemappa (supra) had noted that the Policy which was in force on the date of death of the government employee should be the basis for consideration of a claim for compassionate appointment. It was highlighted by the Hon'ble Supreme Court in the aforesaid case that where the benefit under the existing Policy was taken away or substituted with a lesser benefit, the Court directed the application of the new Policy, and in cases where the benefits under an existing Policy were enlarged by a modified Policy after the death of the employee, the Court applied only the Policy that was in force on the date of death of the employee. The same was also explained to the effect that such interpretation was fundamentally due to the fact that compassionate appointment was always considered to be an exception to the normal method of recruitment and perhaps looked down upon with lesser compassion for the individual and greater concern for the rule of law.

68. As of now, there is only one three-Judge Bench decision on the aforesaid issue i.e. in N.C. Santhosh (supra) while all other judgments noticed above are of two-Judge Bench. In the above circumstance, this Court deems it appropriate to follow the principle laid down inN.C. Santosh (supra).

13. Learned counsel for the petitioner would submit that though the policy

of 18.05.2007 was enforced still Virendra Kumar Gachpalle was

granted compassionate appointment on the count that policy which

was prevailing at the time of death of Virendra's father cannot be

ground for this court to allow the illegality if any committed by the

Bank. The law has been well settled that illegality cannot be a ground

to grant parity or equality even otherwise, the judgment of Hon'ble

three judges Bench in case of N.C. Santhosh, who is binding over the

judgment passed by the two judges was not passed when the order

for grant of compassionate appointment was considered by the bank

in the matter of Virendr's case. In the present case the bank has filed

the specific affidavit narrating the correct factual position and referring