Jai Kishan vs Canara Bank & Anr.
2011 Latest Caselaw 3179 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                  Date of decision: 7th July, 2011
+                                  W.P.(C) 984/2008

         JAI KISHAN                                         ..... Petitioner
                            Through:      Mr. Kundan Kumar Mishra, Adv.
                                   Versus
         CANARA BANK & ANR.                              ..... Respondents
                     Through:             Mr. Naveen R. Nath, Ms. Amrita
                                          Sharma & Mr. Darpan Kumar,
                                          Advocates.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                        No

2.       To be referred to the reporter or not?                 No

3.       Whether the judgment should be reported                No
         in the Digest?

RAJIV SAHAI ENDLAW, J.

CM No.22205/2010 (of the petitioner for restoration of the writ petition dismissed in default on 22nd November, 2010).

1. The counsel for the respondent Bank seeks time to file reply.

However considering the nature of the application need is not felt to call

for the reply. The counsels have been heard.

2. For the reasons stated in the application, the same is allowed. The

writ petition is restored to its original position.

The application is disposed of.

W.P.(C) No.984/2008

3. The writ petition seeks mandamus to the respondent Bank to grant

employment to the petitioner on compassionate ground, as per the Scheme

prevailing in the respondent Bank. Though the writ petition also claims

the relief of release of full and final pensionary and other benefits but no

argument in that regard has been addressed.

4. The petitioner is the son of one Sh. Rishi Raj employed with the

respondent Bank as a Clerk and who died on 2nd February, 2001 with about

12 years of service remaining. The said Sh. Rishi Raj at the time of his

death was drawing a salary of `10,583/- per month.

5. Sh. Rishi Raj, father of the petitioner had married twice. He left

behind a son namely Sh. Sanjay from the first wife. The first wife had

however pre-deceased Sh. Rishi Raj. The petitioner is the son of Sh. Rishi

Raj from his second wife.

6. The son of Sh. Rishi Raj from his first wife is stated to have given

no objection for grant of compassionate appointment to the petitioner.

Similarly, the mother of the petitioner has also given no objection. Sh.

Rishi Raj from his second wife left behind besides the petitioner, two

daughters also.

7. The petitioner in accordance with the Scheme of the respondent

Bank for providing compassionate appointment, applied to the respondent

Bank shortly after the demise of his father. However, since the petitioner

was then under age, he was asked to apply upon attaining majority. The

petitioner claims to have attained majority on 1st December, 2002 and

again applied to the respondent Bank on 18th July, 2003 for compassionate

appointment. The said request was declined vide letter dated 9 th April,

2005 on the ground that the respondent Bank had formulated a Scheme for

payment of lump-sum ex gratia amount and there was no provision for

compassionate appointment. The petitioner was thus advised that the

respondent Bank could not consider his request for compassionate

appointment.

8. Notice of the writ petition was issued. The respondent Bank in its

counter affidavit has stated that though a Scheme for compassionate

appointment was in force since the year 1976 but was scraped and

substituted on 14th February, 2005 with a Scheme for payment of ex gratia

lump-sum amount in lieu of appointment on compassionate ground. It is a

term of the said Scheme that upon coming into its force, all applications

for compassionate appointment pending as on the date of the coming into

force of the Scheme will be dealt with in accordance with the new Scheme.

9. At first blush it appeared that since the petitioner had applied on 18 th

July, 2003 when the Scheme for compassionate appointment was in force

and further since it was the respondent Bank which kept the said

application pending for over one year and/or till the substitution of the

Scheme for compassionate appointment with the Scheme for ex gratia

payment, the Scheme which had come into force after nearly two years of

the application filed by the petitioner could not deprive the petitioner of

consideration of his case for compassionate appointment. However I find

the matter to be no longer res integra. The Supreme Court in State Bank

of India Vs. Raj Kumar (2010) 11 SCC 661 set aside the order of the High

Court holding that the old Scheme (i.e. of compassionate appointment)

applied to pending applications and the new Scheme (i.e. of ex gratia

payment) was only prospective in operation. The Apex Court reiterated

that appointment on compassionate grounds is not a source of recruitment;

on the other hand it is an exception to the general rule that recruitment to

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

providing equal opportunity to all the eligible persons to participate in the

selection process; that the dependants of employees who die in harness do

not have any special claim or right to employment, except by way of

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; that 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; that when a Scheme is abolished,

any pending application seeking appointment under the Scheme will also

cease to exist, unless saved; the mere fact that an application was made

when the Scheme was in force will not by itself create a right in favour of

the applicant. It was further held that where the earlier Scheme is

abolished and the new Scheme which replaces it specifically provides that

all pending applications will be considered only in terms of the new

Scheme, then the new Scheme alone will apply. It was yet further held

that as compassionate appointment is a concession and not a right, the

employer may wind up the Scheme or modify the Scheme at any time

depending upon its policies, financial capacity and availability of posts.

10. The present case is squarely covered by the judgment aforesaid

pertaining to the same schemes. Unfortunately, the counsel for the

respondent Bank inspite of seeking time did not invite attention thereto. In

view of the said direct judgment, reliance by the counsel for petitioner on

Amrit Banaspati Co. Ltd. Vs. State of Punjab (1992) 2 SCC 411, is of no

avail.

11. Though the writ petition cannot succeed owing to the aforesaid but I

may also mention another reason for which it was felt that the petitioner

has disentitled himself to the relief. Inspite of refusal of the respondent

Bank on 9th April, 2005, the present writ petition was filed only in or about

February, 2008 i.e. after nearly three years. The Supreme Court in Eastern

Coalfields Ltd. v. Anil Badyakar AIR 2009 SC 2534 has held that

compassionate appointment is not a vested right which can be exercised at

any time in future; compassionate appointment cannot be claimed and

offered after a lapse of time and after the crisis is over; compassionate

appointment is intended to enable the family to tide over the sudden crisis

or distress.

12. Notice may also be taken of LIC Vs. Asha Ramchhandra Ambekar

(1994) 2 SCC 718 and Union of India Vs. Bhagwan Singh (1995) 6 SCC

476 and the judgment of a Single Judge of this Court in MCD Vs. Bhori

Lal MANU/DE/0514/1999 wherein it has been held that Courts are not

empowered to give direction for compassionate appointment and are only

entitled to direct consideration for compassionate appointment.

13. Before parting with the case, another plea of the respondent Bank

may also be noticed. It is their case that upon rejection of the claim for

compassionate appointment, the mother of the petitioner had applied under

the new Scheme for ex gratia payment but was not found entitled thereto

also for the reason of drawing pension of approximately `4300/- per month

and being in receipt of termination benefits of over `4 lacs of late Sh. Rishi

Raj. No grievance in this writ petition of the rejection if any of the claim

for ex gratia payment has been made.

14. There is thus no merit in the writ petition, the same is dismissed. no

order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) JULY 07, 2011 bs