Pramod Kumar Dixit vs State Bank Of India & Ors.
2009 Latest Caselaw 2241 Del

*             THE HIGH COURT OF DELHI AT NEW DELHI

+                     Writ Petition (Civil) No. 6697/2006

                                           Reserved on : 27.04.2009

                                       Date of Decision : 25.05.2009

Pramod Kumar Dixit                                  ...... Petitioner
                                 Through: Mr.V.N. Sharma, Advocate


                                  Versus

State Bank of India & Ors.                       ...... Respondents
                                 Through : Mr.A.K. Sharma, Advocate


CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                   YES
2.     To be referred to the Reporter or not ?        YES
3.     Whether the judgment should be reported
       in the Digest ?                                YES

V.K. SHALI, J.

1. This is a writ petition filed by the petitioner seeking

appointment on compassionate ground in compliance to the

letter dated 5th July, 2005 issued by the respondents. Another

prayer made in the writ petition is that the respondents be

restrained from enforcing the new scheme dated 4th August,

2005, by virtue of which the respondents are directing payment

of ex-gratia payment to the petitioner in lieu of appointment on

compassionate ground.

2. Briefly stated the facts leading to the filing of the present

petition are that the father of the petitioner was employed with

the respondent/bank as an Assistant at Palwal Branch, District

Faridabad, Haryana. On 29th January, 2004 he suffered a

cardiac attack while on his way to office and expired. The father

of the petitioner was survived by his widow aged about 40 years,

daughter aged about 22 years, petitioner himself aged 20 years

and another son aged about 19 years. On 10th April, 2004 the

mother of the petitioner submitted a letter of request to the

respondents that on account of their poor financial condition the

family of the deceased may be provided employment on

compassionate ground so that some regular source of income is

fixed. On 25th April, 2005 a reminder was sent. The matter was

examined and on 5th July, 2005 a letter was sent to the Palwal

Branch Office intimating that the competent authority has in

principle granted the approval for giving employment on

compassionate ground to Pramod Kumar Dixit son of the

deceased. He was required to furnish an undertaking that he

will look after the dependants of the deceased employee apart

from completing all other formalities. It was also said in the

letter that he should keep himself ready for the interview to be

held shortly, in respect of which the date, time and venue shall

be intimated to him separately. Pursuant to this approval, a

letter dated 2nd August, 2005 was sent by the petitioner

enclosing therewith the requisite documents by way of an

undertaking that he will take care of his mother and other

dependants of the deceased. Since the petitioner did not hear

anything after this, he was constrained to file the present writ

petition on 27th April, 2006 for seeking a mandamus against the

respondent to appoint the petitioner on compassionate ground.

It is alleged by the petitioner that he had learnt about the factum

of respondents having introduced a new scheme of granting of

ex-gratia payment in lieu of appointment on compassionate

ground on 4th August, 2005, the said scheme was also

challenged and it was prayed that the said scheme may not be

enforced against the petitioner.

3. The respondents in the counter affidavit have contested the

claim of the petitioner for appointment on compassionate ground

on the ground that w.e.f. 4th August, 2005 a new scheme had

been adopted by the respondents/management under which the

petitioner at best is entitled to as ex-gratia payment, therefore,

the petitioner could not be granted employment on

compassionate ground.

4. I have heard the learned counsel for the parties and

perused the record.

5. It has been contended by the learned counsel for the

petitioner that competent authority had granted approval in

principle about the appointment of the petitioner on

compassionate ground, and therefore, merely on account of

adoption of new policy of 4th August, 2005, the petitioner could

not be deprived of the benefit of compassionate appointment. It

was further contended as the petitioner had completed some part

of the formalities for such an appointment. Therefore, he will be

governed by the old policy not by the new policy dated 4th

August, 2005.

6. As against this, Mr. Raju Ramachandran, learned senior

counsel for the respondent/bank contended that the case of the

petitioner will be governed by the new policy dated 4th August,

2005. This is on account of the fact that although the case of

the petitioner for appointment on compassionate ground may

have been approved in principle by the respondents but that

approval was never communicated to petitioner and there were

number of other formalities to be completed by the petitioner

only after which he would actually be offered letter of

appointment. This is evident from the letter dated 5th July, 2005

on the basis of which the petitioner was basing his claim wherein

it is specifically stated that the petitioner shall keep himself

ready for the purpose of interview at the time, place and venue

which shall be intimated to him separately. It was also

contended by the learned counsel for the petitioner that the

appointment on compassionate ground cannot be said to be

conferring a vested right on an individual, therefore, till the time

the communication of appointment on compassionate ground is

not handed over to the petitioner, the same cannot be said to be

fully binding on the respondents/management.

7. I have carefully considered the respective submissions of

the learned counsel for the parties and have also gone through

the record. There is no dispute about the legal position with

regard to the appointment on compassionate ground. It has

been laid down by the Supreme Court that the appointment on

compassionate ground cannot be claimed as a matter of right

and is only a matter of exception. Secondly, the compassionate

appointment is granted to a member of a family so that family in

distress is able to tide over the initial period of distress.

Reliance in this regard can be placed on the following authorities:

Sanjay Kumar Vs. State of Bihar 2000 (7) AD (SC) 108 Mumtaz Yunus Mulani Vs. State of Maharastra JT 2008 (4) SC 512

8. The question which arises in the instant case is as to

whether the case of the petitioner for appointment on

compassionate ground which was approved in principle by the

respondents an inter departmental communication dated 5th

July, 2005 and not communicated officially to the petitioner, but

in pursuance to which the petitioner is purported to have

furnished an undertaking, can be said to be a ground for

granting him compassionate appointment on the basis of said old

policy when the respondents themselves have adopted a new

policy on 4th August, 2005.

9. In the new policy instead of granting appointment on

compassionate ground the respondents/management after

taking note of the observations passed by the Hon'ble Supreme

Court in case titled Umesh Kumar Nagpal (1994) 4 SCC 138 has

been observed that the said policy is effective with immediate

effect and instead of appointment on compassionate ground the

family of the deceased shall be entitled to ex-gratia payment. It

is provided in the new policy that all pending cases will be

governed by the new policy on the date when the new policy

came into existence that is on 4.8.2005 the case of the petitioner

was pending because no formal letter/offer of appointment on

compassionate ground was sent to him. As a matter of fact he

was yet to be subjected to interview.

10. The reason for this change of policy is given by the

respondents themselves in the background of the policy as well

as the objective. It is observed in new policy that on account of

grant of compassionate appointment no immediate financial

succor is provided to the family of the deceased because it

invariably takes sometime in granting the compassionate

appointment to the member of a family of the deceased. It has

also been adding to the staff strength of the bank by inclusion of

persons who may not be otherwise fully useful to the bank as

they may not know operation of the computers or may not be as

useful as a normally recruited person. It was because of this

change in the policy that the respondent/management of the

bank felt that instead of granting appointment on compassionate

ground they would give one lump sum ex-gratia payment of

varying quantum depending on the status of the deceased

employee in the bank and the service rendered by him.

11. The learned counsel for the respondents have also cited

authorities wherein it has been observed that till the time the

order is not fully communicated to the petitioner, the

respondents will be well within their right to review and change

the decision. It has been observed in Bachhittar Singh Vs.

State of Punjab, AIR 1963 SC 395 at page 398:

"Thus it is of the essence that the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by that order. For, until the order is communicated to the person affected by it, it would be open to the Council of Minister to consider the matter over and over against and therefore till its communication the order cannot be regarded as anything more than provisional in character."

12. It is in this background that this Court is of the opinion

that the petitioner cannot claim compassionate appointment as a

matter of right on the basis of the letter dated 5th July, 2005

because this letter was never addressed or communicated to the

petitioner. It was an inter departmental communication that in

principle approval have been granted by the competent authority,

but the petitioner was still required to fulfill certain formalities

and it is for that purpose that he is required to undergo even the

interview. This clearly amplifies that the policy which is in vogue

at the time when the case of the petitioner for appointment on

compassionate ground is considered and it will be applicable to

the case of the petitioner also. The petitioners case being only a

pending case at the time when the new policy came in existence

is necessarily to be governed by the same and not by the old

policy as alleged by him.

13. The Division Bench of the Madras High Court in case titled

Punjab National Bank & Anr. Vs. R. Latha 2007 W.A.(MD)

No.411/2006 & W.A.M.P.(MD) No.1/2006 dated January 08,

2007 has come to a conclusion that the law or the scheme which

was last in operation would be applicable to such case of

compassionate appointment. This authority clearly shows that

the new scheme would be applicable to the case of the petitioner,

accordingly, this Court holds that the petitioner cannot claim

appointment on compassionate ground as a matter of right on

the basis of the letter dated 5th July, 2005 and since a new policy

had been promulgated and made applicable with immediate

effect the present case, by virtue of which the petitioner at best

was entitled to ex-gratia payment.

14. The respondents are directed to consider the case of the

petitioner for release for ex-gratia payment by taking his

application for appointment on compassionate ground as a

representation for release of his ex-gratia payment and pass an

appropriate order for the release of the same within a period of

six weeks from the date of the passing of the order. It is made

clear that in case the ex-gratia payment is not released within a

period of six weeks, it shall carry an interest @ 8% per annum

from the date of order till its actual release. With these

directions, the writ petition is dismissed as being without any

merit.

V.K. SHALI, J.

MAY 25, 2009 KP