1 S.B. Civil Writ Petition No.7869/2008 Chakarwati Singh. vs. Marwar Ganganagar Bikaner Gramin Bank. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT S.B. Civil Writ Petition No.7869/2008 Chakarwati Singh. vs. Marwar Ganganagar Bikaner Gramin Bank. Date : 27.7.2009 HON'BLE MR. PRAKASH TATIA, J. Mr.NS Charan, for the petitioner. Mr.PK Lohra, for the respondent. - - - - - BY THE COURT : REPORTABLE Heard learned counsel for the parties. The petitioner's father was Class-III employee in the respondent bank and was holding the post of LDC cum Cashier. The petitioner's father died on 19.4.2006. There was a scheme of giving compassionate appointment to the dependent of deceased bank employee which came in force w.e.f. 2 S.B. Civil Writ Petition No.7869/2008 Chakarwati Singh. vs. Marwar Ganganagar Bikaner Gramin Bank. 1.1.83. As per that scheme, copy of which has been shown by learned counsel for the petitioner, the eligible candidate could have applied for compassionate appointment within one year obviously from the date of death of employee. In the present case, the petitioner applied for compassionate appointment on 12.5.2006 i.e. within one month from the date of death of his father. No specific order was passed for rejecting the petitioner's application for grant of compassionate appointment and according to the petitioner, he came to know that on account of circular dated 6.10.2006, the respondent bank has stopped giving appointment to the persons of deceased employee on compassionate ground. However, the petitioner came to know that two persons namely, Sumit Kumar and Vinod Kumar were given compassionate appointment even after 6.10.2006 by giving appointment to them on 3.11.2006 and 11.11.2006. The petitioner has approached this Court because the petitioner by implication has been denied compassionate appointment under the scheme which came into force w.e.f. 1.1.83 and continued to be in force till 5.10.2006 as on 6.10.2006, a new decision was taken by the respondent bank to give lumpsum payment in lieu of compensation to the dependent 3 S.B. Civil Writ Petition No.7869/2008 Chakarwati Singh. vs. Marwar Ganganagar Bikaner Gramin Bank. of deceased employee. Learned counsel for the petitioner submitted that the cause of action accrued to the petitioner on the date of death of his father and that is on 19.4.2006 and at the most, it can be on 12.5.2006 when the petitioner applied under the guidelines issued in the year 1983. It is submitted that a decision adopted in December, 2006 is not retrospective in operation and could not be applied to the case of the petitioner. Learned counsel for the respondent bank vehemently submitted that the compassionate appointment is not a right of dependent of deceased employee. This appointment is an exception to the general procedure of giving appointment to any post. It is also submitted that for this type of appointment, neither sympathetic attitude can be taken by the Court nor appointment can be given contrary to the Rules, law or policy decision and even if a situation is pitiable, even then, the policy decision cannot be brushed aside as held by the Hon'ble Supreme Court in the case of Life Insurance Corporation of India vs. Asha Ramchandra Ambekar (Mrs) and another reported in (1995) 2 SCC 718. It has been held by the Hon'ble 4 S.B. Civil Writ Petition No.7869/2008 Chakarwati Singh. vs. Marwar Ganganagar Bikaner Gramin Bank. Apex Court that Law is the embodiment of all Wisdom and Justice according to law is a principle as old as the hills. The Courts are to administer law as they find it, however, inconvenient it may be. Learned counsel for the respondent also relied upon the judgment delivered in the case of Umesh Kumar Nagpal vs. State of Haryana and others reported in (1994) 4 SCC 138 wherein the Hon'ble Apex Court has considered the object of giving compassionate appointment and held that it is to enable the penurious family of the deceased employee to tide over the sudden financial crisis and not to provide employment. The Hon'ble Apex Court also considered the issue whether this type of appointment can be claimed as a matter of right and if not, then the persons who can be given appointment on compassionate grounds and what circumstances exist for giving such type of appointment. Learned counsel for the respondent also submitted that the delay and laches are also relevant factors for denying such tyupe of appointment as held by the Hon'ble Apex Court in the case of State of J & K and others. vs. Sajad Ahmed Mir reported in (2006) 5 SCC 766. In that case, the employee died on 6.3.87 and the 5 S.B. Civil Writ Petition No.7869/2008 Chakarwati Singh. vs. Marwar Ganganagar Bikaner Gramin Bank. applicant applied for getting compassionate appointment on 20.9.91 i.e. after more than 4 years from the time of death. Learned counsel for the respondent also relied upon the judgment delivered in case of State Bank of India and another vs. Somvir Singh reported in (2007) 4 SCC 778 wherein the Hon'ble Apex Court held that the dependent has no special or additional claim or right to appointment on compassionate grounds apart from the scheme governing the employee and the instructions or rules framed by the employer. The Hon'ble Apex Court has considered the factors for determining the financial condition and income of the family of deceased from all sources. It will be worthwhile to mention here that in the case of Somvir Singh (supra), the Hon'ble Apex Court held that “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 matter 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.” Learned counsel for the respondent also relied 6 S.B. Civil Writ Petition No.7869/2008 Chakarwati Singh. vs. Marwar Ganganagar Bikaner Gramin Bank. upon the judgment delivered in the case of Kendriya Vidyalaya Sangathan and others vs. Dharmendra Sharma reported in (2007) 8 SCC 148 wherein the Hon'ble Apex Court held that the court cannot direct appointment contrary to the policy. In addition to the above, learned counsel for the respondent relied upon the judgment delivered in the case of Union Bank of India and others vs. M.T. Latheesh reported in (2006) 7 SCC 350 wherein the Hon'ble Apex Court held that a dependent of a deceased employee of the Bank making an application under the scheme does not automatically become entitled to get compassionate employment nor does the possession of relevant qualification create any vested right in his favour to get appointed to a post specified by the scheme. However, the Hon'ble Apex Court held that his right is limited to get preferential treatment against the general principle of appointment, subject to the discretion of the Bank. It will be further worthwhile to mention here that learned counsel for the respondent bank relied upon para 28 of the aforesaid judgment of Union Bank of India (supra) wherein the contention was considered by Hon'ble Apex Court of the counsel for the respondents that several compassionate appointments quite contrary to the 7 S.B. Civil Writ Petition No.7869/2008 Chakarwati Singh. vs. Marwar Ganganagar Bikaner Gramin Bank. scheme have been given and, therefore, the respondents should also be considered for such appointment on compassionate grounds. The Hon'ble Apex Court rejected said contention and held that it is well settled that Article 14 of Constitution of India cannot be extended to legalise illegal orders though others had wrongly got the benefits of that order on some stray incidents earlier. Learned counsel for the respondent also submitted that two persons named by the petitioner who have been given appointment on compassionate grounds were given appointment because their applications were considered by the Board of Directors of the said bank and they recommended compassionate appointment before the Scheme of 2006 came into operation. However, the appointments were given after the scheme of 2006 came into operation. It is also submitted that in that situation, the appointments given to these persons namely, Sumit Kumar and Vinod Kumar cannot be taken as an exemption for giving more appointments which may result into more litigation. Learned counsel for the petitioner in rejoinder relied upon the following three judgments :- 8 S.B. Civil Writ Petition No.7869/2008 Chakarwati Singh. vs. Marwar Ganganagar Bikaner Gramin Bank. (1)Mukesh Kumar vs. Union of India and others reported in (2007) 8 SCC 398. (2)Bajrang Singh Rathore and ors. vs. State of Rajasthan and anr. reported in 2005(4) WLC (Raj.) 126. (3)Kuldeep Kalla. vs. State of Rajasthan and ors. reported in 2006(5) WLC (Raj.) 615. I considered the submissions of learned counsel for the parties and considered the judgments relied upon by learned counsel for the parties as well as facts of the case. So far as legal proposition that the compassionate appointment is not a right of the dependent employee and delay and laches may disentitle the applicant from getting the appointment and what should be relevant consideration for giving appointment on compassionate ground are concerned, their cannot be any quarrel after so many judgments of the Hon'ble Apex Court but at the same time, the Hon'ble Apex Court in the case of Somveer Singh (supra) laid down as under :- “The claim for compassionate appointment and the right, if any, is traceable only to the 9 S.B. Civil Writ Petition No.7869/2008 Chakarwati Singh. vs. Marwar Ganganagar Bikaner Gramin Bank. scheme, executive instructions, rules, etc. framed by the employer in the matter of providing employment on compassionate grounds.” Then even after holding that said claim is not a right, it has been held as under :- “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 all the judgments referred above, it has not been held that the compassionate appointment which is an exception to the rule of giving appointment, is bad in law or practice of giving compassionate appointment has been rejected or condemned so as to persuade the employer to withdraw the existing laws, rules or policy decisions of giving compassionate appointment. The compassionate appointment per se is not a right but when the employer took a policy decision of giving compassionate appointment or enacted the law for the same purposes of giving appointment on compassionate grounds, than the employer is bound by their own decision. This position is clear from the judgment of Hon'ble Supreme Court delivered in 10 S.B. Civil Writ Petition No.7869/2008 Chakarwati Singh. vs. Marwar Ganganagar Bikaner Gramin Bank. the case of Somveer Singh, which at the cost of repetition may be quoted here :- “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.” (emphasis supplied). The important is that if the employer has framed the scheme or issued instructions, then the employer is bound by its own decisions which may not be a right of the employee as such but obligation of employer to obey the rules, instructions or policy decision of giving appointment on compassionate grounds. The employer cannot deny the benefit of their own decision on false pretext or excuse nor can act arbitrarily while giving benefit of their decision to beneficiary of the policy decision and cannot deny the benefit by saying that the employee or dependent had no right to claim any benefit inspite of the fact that the policy decision has been taken voluntarily to give benefit to the dependent of the employee. Since compassionate appointment denies appointment to some eligible candidate in regular selection, then certain restrictions may be imposed but that restriction 11 S.B. Civil Writ Petition No.7869/2008 Chakarwati Singh. vs. Marwar Ganganagar Bikaner Gramin Bank. must be imposed in the scheme itself so as to apply upon all as a whole, upon all the employees falling in one category i.e. in the category of dependent of the employee. The judgments relied upon by learned counsel for the respondents, referred in some detail above, as stated above also, in sum and substance recognise the principle of giving appointment on compassionate grounds though with restrictions and limitations in larger public interest so as to minimise these appointments so as to make more posts available for general public in open market or for competition of the eligible candidates but where there is a scheme framed by the employer itself and the employer takes upon it as obligation to give benefit, then the employer is bound by the policy decision. It will be further worthwhile to mention here that inspite of several judgments of the Hon'ble Supreme Court pointing out that compassionate appointments may deny appointments to some eligible candidates and there is no obligation upon the employer to frame the policy or rule to give appointment, yet they are continuing with these types of policies. This clearly suggest that the employer themselves are willing to keep some scope for giving some benefit 12 S.B. Civil Writ Petition No.7869/2008 Chakarwati Singh. vs. Marwar Ganganagar Bikaner Gramin Bank. to class of employee who may die in harness during the period of their employment. Be it as it may be, the facts of this case are distinguishable from the facts of the other cases where there was some delay or laches on the part of the dependent. Here in this case, the employee died on 19.4.2006 after rendering service for more than 10 years. His dependent i.e. petitioner was eligible for appointment and the respondents framed a scheme in the year 1983 and made it applicable from 1.1.1983 and this policy was obeyed by the respondent bank itself for more than 20 years, then it does not lie in the mouth of the respondent bank to say that any appointment given under the scheme of 1983, which continued for more than 20 years, would result into some back-door appointment and would deny appointment to the eligible candidates in open market in open competition. The petitioner, who applied within one month from the date of death of the employee has been denied appointment because the Board of Directors who were competent to take decision on the day when the petitioner applied for the post did not take the decision. There appears to be no reasonable reason for not taking decision in favour of the petitioner by the Board of Directors. If it would have been taken in time, 13 S.B. Civil Writ Petition No.7869/2008 Chakarwati Singh. vs. Marwar Ganganagar Bikaner Gramin Bank. the petitioner would have got the appointment as he was eligible for the appointment and as per the respondents if the Board of Directors would have taken the decision in time, the petitioner could have been given appointment even after 6.10.2006 as has been done in two cases of appointment. Coming into force of the scheme, which came into effect from 6.10.2006, admittedly cannot govern the case of the petitioner because the cause of action to him accrued before 6.10.2006 and he applied when the Scheme of 1983 was in force. At this juncture, it will be relevant to mention here that if the petitioner was not entitled to compassionate appointment on the ground that his family was not in harness or he is not qualified to hold the post, then that is not the case here because of the guidelines and simple reason that the respondents have not rejected the case of the petitioner on these grounds. It will be worthwhile to mention here that according to the petitioner, there were three banks which were Marwar Gramin Bank, Sri Ganganagar Kshetriya Gramin Bank and Bikaner Kshetriya Gramin Bank. The petitioner's father was employee of Marwar Gramin Bank. Two persons Sumit Kumar and Vinod Kumar ancestors were employees of Sri Ganganagar 14 S.B. Civil Writ Petition No.7869/2008 Chakarwati Singh. vs. Marwar Ganganagar Bikaner Gramin Bank. Kshetriya Gramin Bank. Their ancestors when died, the date is not on record, but admittedly their appointment was given by the respondents after amalgamation of the three banks and that too after adopting the policy decision of 6.10.2006 which provides for payment of ex-gratia amount in lieu of appointment on compassionate grounds. Had it been a case of decision taken by the Board of Directors in time, certainly, the respondent Bank would have given appointment to the petitioner even after 6.10.2006 as one cannot presume that the petitioner's case would have been discriminated from the case of Sumit Kumar and Vinod Kumar who have been given appointment on compassionate grounds after coming into force of policy decision dated 6.10.2006. At this juncture, it will be further relevant to mention here that whether giving appointment to the petitioner after 6.10.2006 will be an appointment contrary to the policy decision dated 6.10.2006 ? and if this Court issues direction to the respondents to give appointment to the petitioner, whether it would amount to a direction contrary to the policy decision dated 6.10.2006 ? The Hon'ble Apex Court in the case of Somveer 15 S.B. Civil Writ Petition No.7869/2008 Chakarwati Singh. vs. Marwar Ganganagar Bikaner Gramin Bank. Singh (supra) held that a right can accrue to the employee if conferred by the employer by way of scheme or instructions, as the case may be, then certainly, the respondents are bound by the decision of the year 1983 and from 6.10.2006, they were bound by their own decision taken on 6.10.2006. The direction of giving appointment would be on the basis of the respondent's own decision taken on 1.1.1983 and which was in force till 5.10.2006. Giving a direction to follow the scheme of 2006 would amount to giving a direction to not follow the decision taken by the respondent bank in the year 1983 and which was in force on the date of death of the employee i.e. petitioner's ancestor. In view of the above reasons, the respondent cannot deny appointment to the petitioner when they themselves accepted that the appointment under the old scheme can be given when the cause of action accrued when the old scheme was in force and the relief has not been given in time to the petitioner. Consequently, this writ petition is allowed and the respondents are directed to consider the case of the petitioner for grant of appointment 16 S.B. Civil Writ Petition No.7869/2008 Chakarwati Singh. vs. Marwar Ganganagar Bikaner Gramin Bank. while keeping in mind the above observations and accord the appointment to him within a period of two months from the date of receipt of copy of this order. (PRAKASH TATIA), J. S.Phophaliya