Delhi High Court
Nirmala Meher vs Union Of India & Ors. on 15 February, 2021
$~87
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 15.02.2021
+ LPA 68/2021
NIRMALA MEHER ..... Appellant
Through: Ms. Monica Kapoor, Advocate.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Ripudaman Bhardwaj, CGSC
with Mr. Kushagra Kumar, Advocate
for R-1/UOI.
Mr. Rajeev Kapoor and Mr. Akshit
Kapur, Advocates for R-3.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MR. JUSTICE SANJEEV NARULA
JUDGMENT
[VIA VIDEO CONFERENCING]
SANJEEV NARULA, J. (Oral)
Brief Background
1. The Appellant, widow of a deceased employee, is aggrieved by the
order dated 20th January, 2020 [hereinafter referred to as the "Impugned
Order"] whereby the learned Single Judge has rejected her writ petition
[being W.P.(C.) No. 2807/2017] impugning the letter dated 2nd April, 2015
issued by the employer, State Bank of India [hereinafter referred to as the
"Respondent No. 3"] declining her appointment on compassionate grounds.
Signature Not Verified
Digitally Signed
By:SAPNA SETHI
Signing Date:19.03.2021
2. Briefly stated, the case of the Appellant is that her husband expired on
17th July, 2014, whilst he was in the service of Respondent No. 3. As on the
date of death, the deceased had rendered services for a period of 15 years
and 6 months and was aged 34 years, 1 month and 27 days. He is survived
by the Appellant herein, mother and two minor daughters aged 8 years and 2
years. The financial condition of the deceased's family was distressing, and
the same deteriorated further after his passing, as the deceased was the sole
bread-earner for the family. The destitution and penury compelled the
Appellant to seek compassionate appointment with Respondent No. 3. An
application dated 3rd November, 2014 was filed in this regard, followed by
several representations and reminders, but to no avail. Ultimately, the
Competent Authority informed the Appellant vide communication dated 25th
March, 2015, that her request for compassionate appointment had been
declined, and that she could apply for ex-gratia lump sum amount in lieu of
the appointment on compassionate grounds, within nine months from the
date of death of the employee as per the extant instructions of Respondent
No. 3.
3. Thereafter, vide letter dated 2nd April, 2015, in reply to the Appellant's
letter dated 30th March, 2015, Respondent No. 3 informed the Appellant that
her case was examined as per the prevalent scheme for appointment on
compassionate grounds, and it was observed that as the total length of
service of the deceased was 15 years and 6 months and he was of the age of
34 years 1 month and 27 days, her case did not fall under any of the
eligibility criteria for appointment on compassionate grounds, which
envisaged two exceptional circumstances. The exceptional circumstances are
highlighted in the said communication dated 2nd April, 2015, and read as
under-
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Digitally Signed
By:SAPNA SETHI
Signing Date:19.03.2021
"(i) Employee dying while performing his official duty, as a
result of violence, terrorism, robbery or dacoity.
OR
(ii) Employee dying within 05 years of his first appointment or
before reaching the age of 30 years, whichever is later, leaving a
dependent spouse and/ or minor children."
It was further reiterated that the Appellant may avail the scheme of ex-gratia
lump sum amount in lieu of appointment on compassionate grounds.
4. Aggrieved with the rejection, the Appellant also made a representation
to the State Commission for Scheduled Castes and Scheduled Tribes.
However, the same was turned down. In this background, the Appellant
approached this Court by filing W.P. (C) 2807/2017 and sought the
following reliefs-
"(A) issue a writ/order/direction in the nature of certiorari
thereby quashing the policy adopted by the Respondent no. 3 in
the matter of appointment on compassionate grounds;
(B) issue a writ/order/direction in the nature of certiorari thereby
quashing/setting aside the order dated 02.04.2015 of the
respondent no. 3 whereby the application of the petitioner for
appointment on compassionate grounds has been rejected;
(C) issue a writ of mandamus thereby restoring the application of
the petitioner for appointment on compassionate grounds in
accordance with the law;
(D) award the cost of proceedings in favour of the petitioner and
against the respondents.
(E) pass any further order/orders as this Hon'ble Court may
deem fit and proper in the facts and circumstances of the case."
5. The learned Single Judge, did not find merit in the petition and
dismissed the same vide the Impugned Order dated 20th January, 2020.
Signature Not Verified
Digitally Signed
By:SAPNA SETHI
Signing Date:19.03.2021
Contentions
6. The Appellant assails the Impugned Order on a limited aspect i.e., the
non-consideration of the prayer at paragraph (A) in the writ petition, as
quoted above, which seeks quashing of the policy of compassionate
appointment. The Appellant contends that the learned Single Judge has
neither examined nor dealt with the said prayer. The policy of appointment
is framed in such a manner as to escape the ethical responsibility of
providing relief to the family of a deceased employee in its time of need.
The eligibility criteria of length of service of the deceased, is irrational. It
cannot be expected that the family of the deceased employee will be in
financial distress only if the employee dies before completing age of 30
years or before he completes 5 years of service. This criterion is contrary to
the objective behind the scheme of compassionate appointment. The
husband of the Appellant died at the age of 34 years, was survived by non-
earning members of the family, and the family was living in penury. Thus,
the approach of the Respondents in rejecting the application is inhumane and
illogical. The criteria of a cut-off age of the deceased or length of service are
arbitrary, and the only eligibility criterion should be the indigence of the
family of the deceased and whether or not they deserve immediate
assistance. However, the learned Single Judge did not take that into
consideration. The learned Single Judge also did not take into account the
letter dated 7th August, 2014, written by Respondent No. 1 (Ministry of
Finance) to Respondent No. 2 (Indian Banks Association), approving the
opening up of compassionate appointment in Public Sector Banks
[hereinafter referred to as "PSBs"] on the lines of the Central Government.
The Central Government scheme for compassionate appointment does not
stipulate a cut-off age of deceased or the length of his/her service to make
his/her dependent eligible for applying for compassionate appointment. The
only eligibility criterion in case of a dependant of the deceased Central
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Digitally Signed
By:SAPNA SETHI
Signing Date:19.03.2021
Government employee is that the family is indigent and deserves immediate
assistance for relief from financial destitution.
7. Respondent No. 3, who was the primary contesting party in the writ
petition, defends the Impugned Order and strongly disputes the claim of the
Appellant. It is contended that compassionate appointment cannot be a
matter of right, and is an exception to the general rule of recruitment which
is based on the merit of the aspirants. The scheme for compassionate
appointment is binding on both the employer and the employee and the
terms thereof must be construed strictly. As stated in the letter dated 2nd
April, 2015, the Appellant's case does not fall under any of the exceptional
circumstances delineated in the scheme dated 4th August, 2011. The circular
dated 13th July, 2012, whereby an amendment was made to the existing
scheme of payment of ex-gratia lump sum amount, came into effect on 1st
April, 2012 and would apply to the Appellant, as her husband passed away
on 17th July, 2014. Respondent No. 3 further relies upon the letter of 5th
December, 2014 which leaves the discretion with the banks to either provide
compassionate appointment or provide an ex-gratia lump sum amount.
Pursuant to the letter dated 5th December, 2014, Respondent No. 3
implemented a policy on 24th April, 2015 which came into effect only on 5th
August, 2014 and thus, would not be of any assistance to the Appellant.
Analysis
8. Certain essential and undisputed facts emerge from a perusal of the
record. Two schemes appear to be operating simultaneously. The first one
was introduced on 4th August, 2011 by Respondent No. 3 titled "Scheme for
appointment on compassionate grounds in exceptional cases" which was
effective from 6th October, 2005. On the same date, i.e., 6th October, 2005
the second scheme, the ex-gratia lump sum amount scheme titled "SBI
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Digitally Signed
By:SAPNA SETHI
Signing Date:19.03.2021
Scheme for payment of ex-gratia lumpsum amount" was also implemented,
replacing the earlier compassionate appointment scheme in place. This
second scheme was amended vide circular dated 13th July, 2012 and this
amended scheme was made applicable to all cases where death occurred on
or after 1st April, 2012.
9. Bearing the afore-noted factual position in mind, we shall now
proceed to analyse the contentions raised by the Appellant. The Appellant's
husband deceased on 7th July, 2014 and she filed an application for
compassionate appointment on 3rd November, 2014. Her application was
rejected vide communications dated 25th March, 2015 and 2nd April, 2015,
and she was requested to apply for ex-gratia lump sum amount in lieu of
compassionate appointment. But the Appellant insisted on appointment,
relying upon two letters dated 7th August, 2014 and 5th December, 2014
addressed by the Respondent No. 1 to Respondent No. 2. In the former
communication, the Ministry of Finance granted approval to have
compassionate appointment in PSBs on the lines of the Central Government
and further, approval was granted to discontinue payment of ex-gratia lump
sum amount in lieu of compassionate appointment. In the latter
communication, the Ministry of Finance reconsidered the stand taken by it in
the earlier letter and stated that PSBs can have both options i.e., either
compassionate appointment in exceptional circumstances, or, payment of ex-
gratia lump sum amount in lieu of compassionate appointment.
10. At this juncture, it is apposite to note the views of the learned Single
Judge. The relevant portion of the Impugned Order reads as under-
"... It is the case of the petitioner that within the time available to
her, she had made an application in pursuance of the Ministry of
Finance's communication D.O.F.No.l8/2/2013-IR dated
07.08.2014, whereby, an approval on the proposal of Indian
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By:SAPNA SETHI
Signing Date:19.03.2021
Banks' Association-respondent no.2 was given to open the
compassionate appointment in PSBs on the lines of Central
Government and discontinue the provision of ex-gratia in lieu of
compassionate appointment in PNB was made. This
communication is the foundation of the claim of the petitioner in
the present petition. It reads as under:
"D.O.F.No.18/2/2013-IR dated: 7th August, 2014.
Dear Kamath Sahab,
Kindly refer to IBA's letters No.
HR&IR/KC/Govt/532/9274 dated 22.4.2014 and 13.6.2014
regarding IBA 's proposal for revising the Compassionate
Appointment Scheme in Public Sector Banks (PSBs). The
proposal has been examined in this Department and it is
decided to convey the approval of the Government on the
proposal of IBA as follows:
i) To open the Compassionate Appointment in PSBs on the
lines of Central Government;
ii)Discontinuing the provision of ex-gratia in lieu of
Compassionate Appointment in PSBs.
2. Accordingly, IBA is also requested to take appropriate
action to circulate the revised Scheme to all PSBs for
adoption with the approval of their respective Boards. The
scheme shall be applicable from 5.8.2014.
3. This issues with the approval of Hon'ble Finance
Minister.
With warm regards,
Yours Sincerely
Sd/-
(Pravin Rawal)
The foregoing communication, it would be seen, is in the
nature of a proposal rather than formulation of any scheme by
any of the banks forming part of IBA. This proposal required
adoption by the respective Boards of the Banks, who form part of
the IBA.
Ms.Kapoor, ld. counsel for the petitioner on her part is
unable to point out for any scheme having been adopted by the
bank in pursuance of the said letter dated 07.08.2014 but for the
scheme of 04.08.2011 in vogue, a copy whereof forms part of the
counter-affidavit, as Annexure R-5. But for the amendment to the
scheme of 04.08.2011 as regards the quantum of ex-gratia
payment nothing else emerges on record. As per the
Signature Not Verified
Digitally Signed
By:SAPNA SETHI
Signing Date:19.03.2021
compassionate appointment scheme dated 04.08.2011, the
scheme was applicable only to the following cases:
"i. Employee dying while performing his official duty, as a result
of violence, terrorism, robbery or dacoity.
ii. Employee dying within five years of his first appointment or
before reaching the age of 30 years, whichever is later, leaving a
dependent spouse and/or minor children."
Undisputedly, the case of the petitioner is not covered
under any of the foregoing cases. Thus, in the absence of any
scheme in vogue as on the date the petitioner made an
application for compassionate appointment, the Court does not
find any right vesting in the petitioner to assert compassionate
appointment. At the relevant time, the petitioner was entitled only
to the ex-gratia lump sum payment as per the applicable and/or
amended scheme in vogue.
Though, Ms. Kapoor adverting to para 15 of the counter-
affidavit seeks to contend that the bank had a revised policy
dated 24.04.2015 w.e.f. 05.08.2014, Mr. Kapur, ld. counsel for
respondent no.3, on his part submits that revised policy dated
24.04.2015 was only an amendment as regards the quantum of
ex-gratia payable against the compassionate appointment and
that the assertion in para 15 of the counter-affidavit has to be
read in the said context rather than any new scheme of
compassionate appointment. In support of his such
submissions, Mr. Kapur explains that the revised/amended
policy dated 24.04.2015 was only as regards the ex-gratia
payment w.e.f. 05.08.2014 rather than for granting
compassionate appointment and nothing else. The Court does
not see any reason to find fault with such submissions made by
Mr. Kapur.
For the foregoing reasons, the Court does not find that the
case of the petitioner is covered within the compassionate
appointment scheme of the bank either at the time she made the
application or later. There is therefore, no merit in the case of the
petitioner seeking compassionate appointment."
(Emphasis supplied)
11. The learned Single Judge has observed that the case of the Appellant
is not entitled to compassionate appointment. The Appellant is under an
impression that there has been a substantial change in the existing scheme
vide letters of 7th August, 2014 and 5th December, 2014, noted above. This
Signature Not Verified
Digitally Signed
By:SAPNA SETHI
Signing Date:19.03.2021
does not appear to be the case as the only changes that have been brought
into the scheme for compassionate appointment and ex-gratia lump sum
amount payments are the dates of applicability of the revised compensation
payable under the scheme and the quantum of ex-gratia payment. The
statement made by the counsel for Respondent No. 3 before the learned
Single Judge, as recorded, seems to lay down the correct position with
regard to the scheme for compassionate appointment. Thus, the Respondent
No. 3's decision was taken in terms of the policy that was in force at the
time. The scheme for appointment on compassionate grounds in exceptional
cases, which came into force by virtue of the communication dated 4th
August, 2011, was clearly not applicable to the Appellant, and accordingly,
she was advised to apply for payment of ex-gratia amount. The learned
Single Judge has examined the extant policy of the Respondent No. 3 and
accordingly returned a finding that as per the applicable scheme, the
Appellant has no case for seeking appointment on compassionate grounds.
Since the learned Single Judge has already dealt with Appellant's contention
at length and since we do not find any ground to interfere with the same, we
need not wade into this controversy any further.
12. Before us, Appellant has primarily urged that the prayer for quashing
of the policy has not been dealt by the learned Single Judge. We do not find
any merit in this contention. The policy has been examined, but, since the
learned Single Judge did not find any arbitrariness or irrationality in the
same, it has declined to interfere. However, since the Appellant resolutely
insists that the policy itself is liable to be struck down, we have nonetheless
examined the contentions urged by the Petitioner in this regard. The
Appellant's contentions are devoid of merit for several reasons, the foremost
being the non-existent right to appointment, which is in fact a concession
given under the scheme. The objective behind the scheme for compassionate
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Digitally Signed
By:SAPNA SETHI
Signing Date:19.03.2021
appointment is to provide financial assistance to the dependants of a
deceased employee, who dies in harness and leaves behind a family which
needs financial assistance, in the event there is no other earning member in
the family. Moreover, the Appellant does not have any vested right. The
right to compassionate appointment cannot be understood to be a conferment
of inherent right to seek compassionate appointment. It is a prerogative of
the State, which can only be granted as per the concerned policy formulated
and enforced at the relevant time. The Appellant does not have any special
claim or right to employment, except by way of the concession that has been
extended by the employer, under the scheme. Besides, the laying down of
criteria or norms for eligibility under the scheme is an administrative
function. The scope of judicial review in such matters is limited. The bank
provides for a lump sum ex-gratia payment. Only for exceptional case is a
compassionate appointment made. The criteria laid down in the impugned
scheme is, evidently, the sudden death of a deceased employee or the
deceased dying at a very young age. We cannot see any arbitrariness in the
same. The claim for compassionate appointment is an exception to the
general rule and therefore has to be strictly examined within the four corners
of the scheme framed by the employer, and there is no right outside such a
scheme. Dependent of a deceased employee is made eligible by virtue of the
policy on compassionate appointment and they must fulfil the norms laid
down by the State's policy. As per the applicable scheme, the Petitioner was
only entitled to ex-gratia lump sum amount. The Supreme Court in SBI vs.
Raj Kumar, (2010) 11 SCC 661, while dealing with a similar issue has held
as under:
"8. It is now well settled 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 eligible persons to participate in the
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Digitally Signed
By:SAPNA SETHI
Signing Date:19.03.2021
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. It. follows
therefore 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"
This view has been further reiterated in MGB Gramin Bank vs.
Chakrawarti Singh, reported in 2014 (13) SCC 583.
13. In light of the above discussion, we do not find any infirmity in the
Impugned Order. Accordingly, the present appeal is dismissed.
SANJEEV NARULA, J
RAJIV SAHAI ENDLAW, J
FEBRUARY 15, 2021
nd
(corrected and released on 19th March, 2021)
Signature Not Verified
Digitally Signed
By:SAPNA SETHI
Signing Date:19.03.2021
