Mudam Kistaiah, Nizamabad Dist. vs The Chief Manager, S.B.H., Hyd And ...
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             HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA


                WRIT PETITION No. 32396 OF 2011

     ORDER:

Proceedings No. F/5/513, dated 12.12.2003 of the

1st respondent is assailed in this Writ Petition on the ground that

they are contrary to the very scheme of appointment on

compassionate grounds. A consequent direction is sought to the

respondents to consider the representation dated 05.11.2001

afresh and appoint his son viz. Ganesh as Sweeper-cum-Peon or

any other suitable post.

2. Petitioner's case is, during the course of

employment, on 28.11.2000, he met with an accident and his right

leg was removed. On the advice and assurance of the respondent

officials, he took voluntary retirement on 31.03.2001 though he

had left with five years of service. Petitioner made a

representation to the 3rd respondent on 05.11.2001 which was

forwarded to the 1st respondent on 07.11.2001 but the same was

kept pending for more than three years. Then, petitioner was

constrained to file Writ Petition No. 17705 of 2004, wherein the

respondents filed the counter stating that the said representation

was rejected on 12.12.2003 on the ground that the request cannot

be considered on medical grounds as the Scheme is applicable

only to the employees who are compelled to leave the bank service

before attaining the age of 55 years. The Writ Petition was

dismissed with liberty to challenge the rejection order dated

12.12.2003.

3. The Chief Manager of the respondent bank filed the

counter stating that petitioner applied for voluntary retirement on

25.01.2001 under SBH (Employees) Voluntary Retirement

Scheme, 2001 which contains a declaration that 'I undertake that

on account of my voluntary retirement from the bank under the

Scheme, I have no right to claim for compassionate appointment'.

The Government of India vide letter dated

28.11.1996 directed the bank that the scheme of compassionate

appointment shall be in consonance w0ith the law laid down by

the Hon'ble Supreme Court in Umesh Kumar Nagpal v. State of

Haryana {(1994) 4 SCC 138} and also in Hariyana State

Electricity Board v. Naresh Tanwar (CA No. 3216-17/06).

According to the Scheme, the case of the employee, who had to

leave the bank's service on medical grounds on or after

01.01.1979 can be considered before he / she attains the age of 55

years due to incapacitization by accidents or specific ailments like

paralysis, cancer and blindness, etcetera.

It is stated that petitioner was aged about 55 years

three months and 15 days as on the date of his retirement, hence,

his dependants are not eligible to seek appointment on

compassionate grounds. Even otherwise, as the petitioner took

retirement under VRS Scheme, 2001, his dependants are not

entitled to seek appointment on compassionate grounds as his

retirement was not on medical grounds. In fact, petitioner

received Rs.4,78,882/- as ex-graia, hence, he is estopped from

making any claim for compassionate appointment on medical

grounds. If he retired on medical grounds, he would not have been

paid ex-gratia amount. The respondents denied that they assured

petitioner of providing appointment to his son.

4. Learned counsel for the petitioner submits that the

action of the respondents dated 12.12.2003 was contrary to the

very Scheme itself. According to him, though petitioner had five

more years service by that time, on the promise made by the

respondents only, he took voluntary retirement. Petitioner gave

representation dated 05.11.2001, hence, his representation may

be considered afresh by setting aside the order dated 12.12.2003,

submits the learned counsel.

5. Learned Standing Counsel for the bank submits

that VRS Scheme, 2001 was introduced for rationalisation of staff

within the bank. Under the said scheme, the bank paid ex-gratia

by calculating the amount as per the terms of the Scheme duly

taking into consideration the length of service rendered and left

over service of each employee whose Application for VRS is

approved. Hence, the question of giving assurance to the petitioner

does not arise.

Learned counsel submits that there is no right of

whatsoever nature to claim compassionate appointment on any

ground other than the one, if any conferred by the employer by

way of Scheme or instructions, as the case may be. To fortify the

said contention, reliance is placed on the judgment of the Hon'ble

Apex Court in State Bank of India v. Somvir Singh 1. He further

submits that compassionate appointment cannot be extended to

legal heirs of retiring / superannuating employees since that

would be contrary to object of granting compassionate

appointment and hence, would be violative of Articles 14 and 16 of

the Constitution. He relies on the judgment of the Supreme Court

in Ahmednagar Mahanagar Palika v Ahmednagar Mahanagar

Palika Kamgar Union 2.

6. From a perusal of the material on record, it is clear

that the petitioner rests his case on the footing that the

respondents gave assurance of providing compassionate

appointment to his son. Whereas the respondent along with the

counter filed the proforma Application for voluntary retirement

under State Bank of Hyderabad (Employees') Voluntary Retirement

Scheme, 2001 wherein there is a declaration that 'I undertake

(2007) 4 SCC 778

(2022) 10 Supreme Court Cases 172

that on account of my voluntary retirement from the bank under

the Scheme, I have no right to claim for compassionate

appointment". In view of the said clause, the petitioner's case that

he was assured by the respondents cannot be accepted. Further,

the petitioner was paid ex gratia, hence, the question of giving

appointment to his son does not arise at all.

7. Learned Standing Counsel for the bank relied on

the judgment in Somvir Singh's case (supra), wherein the

Hon'ble Apex Court in paragraph 7 and 10 held as under:

" Article 16(1) of the Constitution of India guarantees to all its citizens equality of opportunity in matters relating to employment or appointment to any office under the State. Article 16(2) protects citizens against discrimination in respect of any employment or office under the State on grounds only of religion, race, caste, sex and descent. It is so well settled and needs no restatement at our end that appointment on compassionate grounds is an exception carved out to the general rule that recruitment to public services is to be made in a transparent and accountable manner providing opportunity to all eligible persons to compete and participate in the selection process. Such appointments are required to be made on the basis of open invitation of applications and merit. Dependants of employees died in harness do not have any special or additional claim to public services other than the one conferred in any by the employer.

There is no dispute whatsoever that the appellant Bank if required to consider the request of compassionate appointment only in accordance with the scheme framed by it and no discretion as such is left with any of the authorities to make compassionate appointment dehors the scheme. In our considered opinion the claim for compassionate appointment and the right, if any is traceable only to the Scheme, executive instructions, rules, etc. framed by the employer in the manner of providing employment on compassionate grounds. There

is no right of whatsoever nature to claim compassionate appointment on any ground other than the one, if any, conferred by the employer by way of scheme or instructions as the case may be."

In Ahmednagar Mahanagar Palika's case (supra), in

paragraph 16, the Hon'ble Apex Court observed as under:

" 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 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 execution to the normal method of recruitment. The appointment on compassionate 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 outsiders shall never get an opportunity to get an appointment though they may be more meritorious and / or well educated and / or more qualified. Therefore, the submission on behalf of the respondent that the appointment is not on compassionate grounds but the same be called as varas hakka cannot be accepted. Even if the same be called as varas hakka the same is not supported by any scheme and even the same also can be said to be violative of Article 14 as well as Article 15 of the Constitution of India."

8. In view of the law laid down by the Hon'ble Apex

Court, the request for compassionate appointment can be

considered only in accordance with the Scheme framed by it and

no discretion as such is left with any of the authorities to make

compassionate appointment de hors the scheme. Further, agreeing

with the contention raised by the learned counsel for the bank

that petitioner is well aware that his case cannot be considered

once he retired from service by adopting voluntary retirement

scheme, even though the sympathies are with the petitioner, this

Court cannot go beyond the scope of the Scheme as well as the

judgments of the Hon'ble Supreme Court.

9. Admittedly, the Scheme will apply to the employees

who are compelled to leave the bank service before attaining the

age of 55 years. In this case, the petitioner is aged about 55 years

three months and 15 days as on the date of his retirement. Hence,

the contention of the petitioner that he is entitled for

compassionate appointment cannot be accepted on this ground

also. The Writ Petitoin is devoid of merits and the asme is liable to

be dismissed.

10. The Writ Petition is accordingly, dismissed.

No costs.

11. Pending miscellaneous petitions, if any, shall stand

closed.

-------------------------------------- NAGESH BHEEMAPAKA, J

08th September 2023

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