Madras High Court
Mrs.R.Kalaivani vs State Bank Of India on 6 September, 2022
WP No.11275 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06-09-2022
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
WP No.11275 of 2016
And
WMP No.9778 of 2016
Mrs.R.Kalaivani .. Petitioner
vs.
1.State Bank of India,
Represented by its Regional Manager,
Regional Business Office,
Gandhi Nagar,
Near Electricity Board Stop,
Vellore 632 006.
2.The Branch Manager,
State Bank of India,
Melsanankuppam Branch,
Melsanankuppam Village,
Ambur Taluk,
Vellore District 635 807. .. Respondents
Writ Petition is filed under Article 226 of the Constitution of India,
praying for the issuance of a Writ of Certiorarified Mandamus, after calling
1/16
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WP No.11275 of 2016
for the records from the first respondent, quash the order of the first
respondent dated 07.01.2016 bearing No.RBO/VLR/HR2231 and
consequently direct the respondents to consider and appoint the petitioner's
son viz., P.R.Raj Bharat on compassionate grounds under the SBI Scheme for
Compassionate Appointment in exceptional circumstances in the available
suitable post or in the alternative to pay Ex-Gratia lump sum amount under
the SBI Scheme for Payment of Ex-gratia Lump sum amount in lieu of
compassionate appointment.
For Petitioner : Mr.Balan Haridas
For Respondents : Mr.S.Ravindran,
Senior Counsel for
Mr.S.Bazeer Ahamed.
ORDER
The order of rejection rejecting the claim of the writ petitioner
for providing appointment on compassionate ground in the respondent-State
Bank of India, is under challenge in the present writ petition.
2. The writ petitioner states that her husband was working as
Customer Assistant in State Bank of India, Melsanankuppam Branch,
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Melsanankuppam Village, Ambur Taluk, Vellore District 635 807. On
23.05.2015, the husband of the writ petitioner at about 02.40 P.M., came out
from the State Bank of India, Melsanankuppam Branch and was riding TVS
50 Champ two wheeler and was hit by an unidentified vehicle and died
instantaneously.
3. Due to the sudden demise of the husband of the writ
petitioner, the family of the writ petitioner was in penurious circumstances.
The son of the writ petitioner Mr.P.R.Raj Bharat was unmarried and
unemployed during the relevant point of time. The daughter Ms.R.Shruthi
Rajalakshmi was married and the last son Mr.P.R.Raj Ragul was also
unmarried and unemployed.
4. The petitioner states that her daughter got married and is
living with her husband. The elder son is aged about 27 years and the younger
son is aged about 22 years. Her first son completed B.Tech., in Information
Technology. Thus she submit her application to provide appointment on
compassionate ground. The petitioner states that her husband was served
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WP No.11275 of 2016
about 21 years in the State Bank of India and therefore, her family is entitled
for compassionate appointment.
5. The learned counsel for the petitioner made a submission that
there is a Scheme for Compassionate Appointment or in the alternative ex-
gratia payment of a lump sum amount and as per the Scheme of
Compassionate Appointment, is to be provided in exceptional circumstances
or in an alternative payment of ex-gratia lump sum amount in lieu of
compassionate appointment is to be settled.
6. In the present case, the husband of the writ petitioner died on
account of violence by way of a hit on the road by an unknown vehicle. A
criminal case was also registered. However, there was no progress in the
investigation by the police.
7. Interpreting the Scheme, the learned counsel for the petitioner
reiterated that in case of such accident caused at the instance of an unknown
person, it would fall under the definition of violence and therefore, the case of
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WP No.11275 of 2016
the writ petitioner is to be considered under the Scheme for Compassionate
Appointment. It is further stated that the husband of the writ petitioner after
completing his official works in the State Bank of India, Melsanankuppam
Branch went out and while riding his TVS 50 Champ two wheeler, he met
with an accident, which caused the death. Therefore, while returning back to
home, after office hours, the husband of the writ petitioner died and , it is to
be treated that the accident occurred during the course of employment. Thus
the death occurred during the course of employment and for all these reasons,
the case of the writ petitioner is falling within the scope of the Scheme and
thus the application submitted by the writ petitioner is to be considered for
appointment on compassionate ground.
8. The learned Senior Counsel, appearing on behalf of the
respondent-Bank, objected the contentions raised on behalf of the writ
petitioner by stating that the scope of the Scheme is limited as far as the State
Bank of India is concerned. There is no recruitment in the Bank and many
people are sent through Special Voluntary Retirement Scheme. Thus the
scope of Scheme of Compassionate Appointment was also restricted by the
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State Bank of India and accordingly, terms and conditions are stipulated. As
per the Scheme, the dependant's family member of permanent employee of
the Bank, who
(i) dies while performing official duty, as a result of
violence, terrorism or robbery or dacoity; or
(ii) dies within five years of first appointment or before
reaching the age of 30 years, whichever is latter, leaving a
dependant spouse and/or minor children,
become eligible to get compassionate appointment.
9. Relying on the terms and conditions stipulated in the Scheme,
the learned Senior Counsel reiterated that the death must be occurred while
performing the official duty as a result of violence, terrorism, robbery or
dacoity, but not otherwise.
10. The learned Senior Counsel distinguished the 'accident' with
the 'violence'. An 'accident' cannot be compared with 'violence', more-so,
while performing the duty. The case of the husband of the writ petitioner was
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an accident, which would reflect in the First Information Report (FIR)
registered before the Jurisdictional Police. When an accident was established,
the same cannot be construed as 'violence' for the purpose of considering the
claim of the writ petitioner for compassionate appointment. This exactly is the
reason why the respondents rejected the claim of the writ petitioner and
provided an opportunity to opt for the alternative benefit of ex-gratia lump
sum amount in lieu of compassionate appointment. However, the petitioner
has not submitted any application for ex-gratia lump sum amount and
therefore, the case of the writ petitioner has not been considered.
11. Considering the arguments, recently on 05.09.2022, the
Supreme Court of India in the case of Ahmednagar Mahanagar Palika vs.
Ahmednagar Mahanagar Palika Kamgar Union [2022 LiveLaw (SC)
739], wherein in paragraph-8 of its judgment, reiterated the principles to be
adopted for providing appointment on compassionate grounds as under:-
“8. Even otherwise, such an appointment to
the heirs of the employees on their retirement
and/or superannuation shall be contrary to the
object and purpose of appointment on
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compassionate grounds and is hit by Article 14 of
the Constitution of India. As observed and held by
this Court in a catena of decisions, compassionate
appointment shall always be treated as an
exception to the normal method of recruitment.
The appointment on compassionate grounds is
provided upon the death of an employee in
harness without any kind of security whatsoever.
The appointment on compassionate grounds is not
automatic and shall be subject to the strict
scrutiny of various parameters including the
financial position of the family, the economic
dependence of the family upon the deceased
employee and the avocation of the other members
of the family. No one can claim to have a vested
right for appointment on compassionate grounds.
Therefore, appointment on compassionate
grounds cannot be extended to the heirs of the
employees on their superannuation and/or
retirement. If such an appointment is permitted, in
that case, outsiders shall never get an
appointment and only the heirs of the employees
on their superannuation and/or retirement shall
get an appointment and those who are the
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outsiders shall never get an opportunity to get an
appointment though they may be more
meritorious and/or well educated and/or more
qualified.”
12. Even in yet another recent judgment of the Supreme Court in
the case of CENTRAL BANK OF INDIA vs. NITIN [2022 LiveLaw (SC)
690] , wherein in paragraphs 20 and 21, it has been held as under:-
“20. It is well settled that compassionate
appointment is an exception to the rule of
equality, which enables the dependent family
members of a medically incapacitated employee
who has no option, but to retire, or a deceased
employee, to tide over the immediate crisis caused
by the incapacitation or death of the breadwinner.
Compassionate Appointment excludes equally or
more meritorious candidates, much in need of a
job, from the zone of consideration.
Consideration for compassionate appointment
must, therefore, be strictly in accordance with the
prevalent rules for compassionate appointment
applicable to the deceased/prematurely retired
employee.
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21. In this case, there is a financial criteria
of eligibility for compassionate appointment
under the Compassionate Appointment Scheme.
Rules which provide for a financial criteria for
appointment on Compassionate ground are valid
and lawful rules which have to be construed
strictly, as otherwise the quota reserved for
compassionate appointment would be filled up
excluding others who might be in greater and/or
far more acute financial distress.”
13. Therefore, the principles settled by the Constitutional Courts
are that the scope of the Scheme of Compassionate Appointment, cannot be
expanded by High Court in exercise of the powers of judicial review under
Article 226 of the Constitution of India. The Scheme must be implemented in
its terms and conditions and therefore, the application of the terms alone to be
considered for the purpose of considering the eligibility for appointment on
compassionate ground.
14. The Scheme of Compassionate Appointment is a concession
and an exception. Thus, the compassionate appointment can never be claimed
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as an absolute right. All appointments are to be made strictly in accordance
with the rules in force. The equal opportunity in public employment is the
constitutional mandate. The equality clause enunciated under the Constitution
is a fundamental right of every citizen, so as to ensure equal opportunity in
the matter of public employments. Thus all the eligible candidates, who all
are aspiring to secure public employment must be provided with an
opportunity for employment by way of Open Competitive Process. Thus, the
compassionate appointment is the violation of Articles 14 and 16 of the
Constitution of India.
15. The Scheme, being violative of the constitutional provisions,
is to be implemented strictly in accordance with the terms and conditions and
in the event of expanding the scope of the Scheme, which would result in
unconstitutionality. Thus the Courts are not expected to expand the scope of
the Scheme.
16. In fact, the restricted form of the Scheme is being adopted by
the employers in view of certain prevailing situation in the matter of
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appointments. In the present case, the State Bank of India has restricted the
scope of compassionate appointment in view of the fact that the over all
recruitment itself is restricted on account of various technological
advancement in the banking system.
17. In the present case, the First Information Report (FIR), dated
24.05.2015, reveals that the husband of the writ petitioner while he was
riding in TVS 50 Champ two wheeler, hit by an unidentified vehicle, fell
down and sustained injuries and while he was taken to hospital for treatment,
he died. A case was registered under Sections 279, 304 (A) IPC in Crime
No.146 of 2015.
18. The unidentified vehicle was not identified and as per the
submission of the learned counsel for the petitioner, there was no progress in
the investigation. Thus, prima facie, the First Information Report reveals that
it was a case of an accident. When prima facie, it is established that it is a
case of accident and not a case of 'violence' and more-so, at the time of
accident, the husband of the writ petitioner was not performing his official
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duty, there is no reason whatsoever to draw factual inference for the purpose
of considering the case of the writ petitioner for compassionate appointment.
19. The language employed under the Scheme is that "where an
employee died while performing official duty and as a result of violence,
terrorism, robbery or dacoity". Thus twin conditions are to be complied with.
An employee died, while performing the official duty and such a death ought
to have occurred as a result of violence, terrorism, robbery or dacoity. Thus
the intention of the employer is to restrict the compassionate appointment
only to the persons, who had died as a result of violence, terrorism, robbery
or dacoity, while performing the official duty. Hence the performance of
official duty cannot be compared with the term of 'Course of Employment'.
20. The scope of 'Course of Employment' can be expanded with
reference to various Labour Law Legislations. However, such expanded
interpretation cannot be provided with reference to the term 'performing
official duty'. Thus, there must be an actual performance of official duty and
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more-so, at the time of actual performance of official duty, if an employee
died due to violence, terrorism, robbery or dacoity, then alone the Scheme of
Compassionate Appointment is to be provided and in all other cases, the bank
provided the alternative relief of payment of ex-gratia lump sum amount in
lieu of compassionate appointment.
21. Thus, the petitioner has to submit an application for an
alternative relief of payment of ex-gratia lump sum amount in lieu of
compassionate appointment and in the event of submitting any such
application, the same is to be considered and appropriate orders are to be
passed by the respondents as expeditiously as possible, since several years
lapsed.
22. With the abovesaid observations, the writ petition stands
disposed of. However, there shall be no order as to costs. Consequently,
connected miscellaneous petition is closed.
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WP No.11275 of 2016
06-09-2022
Index : Yes/No.
Internet : Yes/No.
Speaking Order/Non-Speaking Order.
Svn
To
1.The Regional Manager,
State Bank of India,
Regional Business Office,
Gandhi Nagar,
Near Electricity Board Stop,
Vellore 632 006.
2.The Branch Manager,
State Bank of India,
Melasanankuppam Branch,
Melasanankuppam Village,
Ambur Taluk,
Vellore District 635 807.
S.M.SUBRAMANIAM, J.
Svn
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WP 11275 of 2016
06-09-2022
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