LETTERS PATENT APPEAL NO.1359 OF 1998 1. THE STATE BANK OF INDIA THROUGH THE CHIEF GENERAL MANAGER HAVING ITS OFFICE AT LOCAL HEAD OFFICE, J.C. ROAD, PATNA. 2. GENERAL MANAGER, PERSONNEL & DEVELOPMENT BANKING, STATE BANK OF INDIA, LOCAL HEAD OFFICE, J.C. ROAD, PATNA. 3. DEPUTY GENERAL MANAGER, STATE BANK OF INDIA, ZONAL OFFICE, MUZAFFARPUR. 4. THE BRANCH MANAGER, STATE BANK OF INDIA, MOTIHARI BAZAR BRANCH, MOTIHARI, EAST CHAMPARAN. 5. THE ASSTT. GENERAL MANAGER (REGION II) STATE BANK OF INDIA, ZONAL OFFICE, MUZAFFARPUR. V E R S U S SRI SHASHI BHUSHAN PRASAD SINHA, SON OF LATE PARMANAND PRASAD, RESIDENT OF VILLAGE AND P.O. PANDITPUR, POLICE STATION- PAKARPUR, DISTRICT- EAST CHAMPARAN (MOTIHARI). For the Appellants : Mr. S.D. SANJAY, Adv. Mr. Shivendra Roy, Adv.For the Respondent: Mr. Mukeshwar Dayal, Adv. Mr. Vikas Mohan, Adv. ----------- P R E S E N T THE HON'BLE MR. JUSTICE NAVIN SINHA THE HON'BLE MR. JUSTICE DINESH KUMAR SINGH Navin Sinha & D.K.S., JJ. This Letters Patent Appeal arises from a judgement and order dated 11.11.1998 passed by a Bench of this Court in C.W.J.C. No.7239/97. The Appellant Bank is aggrieved by the conclusion arrived at holding that the rejection of the claim for compassionate appointment was not tenable in law and the Bank has been directed to consider the case of the petitioner for such appointment in light of the scheme of the Bank. The father of the petitioner was employed as a messenger in the Appellant Bank at its branch at Raxaul. 2 He was deceased in harness on 29.2.1996. The petitioner then applied for compassionate appointment on 22.3.1996 which was rejected on 22.4.1997. An uncontroverted fact emerging from the decision of this Court is that disciplinary proceedings were initiated against the father of the petitioner while he was in service, but which remained inconclusive as the delinquent was deceased during the pendency of the same. A First Information Report was also lodged on the same allegations but in which final form came to be submitted which, learned counsel for the respondents urged, came to be accepted in absence of any opposition by the Bank. Learned counsel for the Appellant Bank contended that compassionate appointment had to be considered strictly in accordance with the policy regulating the same. Placing reliance on the policy as explained by Circular No.34/83 dated 25.2.1983 it was urged that those against whom disciplinary proceedings were contemplated or who died during the suspension period, or pendency of departmental proceedings could not be said to have an unblemished service record to entitle their heirs for compassionate appointment. Learned counsel for the respondents urged that the departmental proceedings never reached finality and 3 therefore it could not be said that the deceased did not have an unblemished service record. Strong reliance was also placed on the bank‟s circular dated 7.4.1995 dealing with disciplinary proceedings and the death of an employee. Relying upon Clause-2 (i) and (ii) of the same it was urged that if an employee died during suspension, he was treated to have died on duty when the period under suspension till death was to be treated as on duty. Departmental proceedings abated on death during pendency of the proceedings. His legal heirs were therefore entitled to all terminal benefits as no further enquiry or show cause notice could be issued to the legal heirs after his death. Appointment on compassionate grounds has been considered a gross exception to Article-14 of the Constitution. The Constitution mandates that every appointment in a Government or Semi-Government authority, which the bank, a „State‟ under Article-12 of the Constitution undoubtedly is, has to be made by open advertisement and selection after competitive merits are assessed between the rival competing applicants. Every appointment made on compassionate ground is at the cost of reducing one vacancy which otherwise would have been available to one and all eligible, for application and to be considered on merits. A compassionate appointment in 4 essence amounts to a privilege of benefit given on the basis of descent. Such an appointment is based on the situation of destitute and penury with which the family of the deceased is visited by reason of an untimely death and for that reason alone, that the courts have countenanced such appointments contrary to Article-14 of the Constitution to a limited extent only. It has therefore been held that any claim for compassionate appointment can be only strictly in terms of the policy regulating such appointments. The earlier lenient view with regard to claims for compassionate appointment shall no more be relevant today. As the economy makes new demands, the number of aspirants seeking employment continues to rise, this Court has no hesitation in holding that any claim for compassionate appointment has to be read down strictly in terms of the policy providing for and regulating the same. The Court cannot read something more into the policy for compassionate appointment than what it actually provides for. That would amount to directing employment on grounds of sympathy by reading into the policy something which the authority itself did not intentionally provide for as otherwise it would have incorporated it in the policy itself. The circular dated 7.4.1995 generally deals 5 with the effect of a disciplinary proceeding against an employee who was deceased during the pendency of the same and the grant of retiral benefits to the family of the deceased. Their right to receive the retiral dues is a completely distinct issue from their claim to be considered for compassionate appointment. The two cannot be linked and at times may be mutually exclusive if the authorities come to the conclusion that the family of the deceased employee facing disciplinary proceedings was in any event not in destitute and penury for reasons to be recorded. Clause-2(3) of the same circular while recognizing the right to release the retiral dues of the deceased to his legal heirs, nonetheless, contemplates other appropriate actions in law against the family of the deceased as the legal heirs for recovery of the misdemeanors or embezzled amount attributable to the deceased. When the circular dated 25.2.1983 regulating claim for compassionate appointment by the legal heir of such a deceased facing departmental enquiry deceased, during the pendency of the same debars them from consideration on the ground that the deceased shall be deemed not to be a person with an unblemished service record, the Court cannot give any directions contrary to the policy to consider compassionate appointment. 6 The contention of the respondents that since the departmental proceeding were not concluded during the lifetime of the deceased and therefore it could not be said with certainty that he did not have an unblemished service record stands specifically covered by the circular. If the circular specifically debars such a person from such consideration it will not be the jurisdiction of this Court to read into the circular what may or may not have been the conclusion in the departmental proceedings. If the employer is of the opinion that a person against whom it had initiated disciplinary proceedings while in service it was not desirous to consider the heirs of such a person for appointment, this Court cannot thrust a decision upon the bank to the contrary. The core of the issue is not if the deceased had an unblemished record or not. By a deeming fiction the policy equates such a person to one who did not have an unblemished service record. This reasoning and policy of the Bank cannot by any stretch be said to be irrational, illogical or illegal. The fact that a final form may have been accepted allegedly when the bank did not oppose it shall not make issues fundamentally different. The question again shall be that if the Bank considers it sufficient that its employee who was the subject-matter of an F.I.R. it would not like to consider the heirs of such a 7 deceased for compassionate appointment, could it be urged that the action of the bank was devoid of any logical reason or satisfaction. The issue is not as to what would have been the result of the criminal prosecution, the issue is of the right of the bank to consider the desirability of the heirs of such a person for compassionate appointment. The Supreme Court in State of J. & K. vs. Sajad Ahmed Mir, (2006) 5 SCC 766 held at paragraph 13 as follows:- “13. In LIC of India v. Asha Ramchhandra Ambekar (1996) 5 SCC 308 it was indicated that the High Courts and the Administrative Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulations framed in respect thereof do not cover and contemplate such appointments.” In GENERAL MANAGER, STATE BANK OF INDIA AND OTHERS Versus ANJU JAIN (2008) 8 SCC 475 the husband of the respondent was punished in a departmental proceeding. Compassionate appointment was denied on the ground that he did not have an unblemished service record. The High Court had directed compassionate appointment. The scheme under consideration was the same as presently, noticed at paragraph 20 of the judgement as follows:- “20. The counsel for State Bank invited our 8 attention to the scheme for appointment on compassionate ground for dependants of deceased employees. As per the policy, such benefit could be granted in certain cases. Para 6 of the scheme laid down “method of appointment”. Clause (d) of the said para dealt with cases where disciplinary actions had been taken against an employee. The said clause read as under: (d) In cases where disciplinary action had been taken against the employee or disciplinary proceedings were pending/contemplated against him/her, appointment of a dependant on compassionate ground may be considered only after obtaining prior Government concurrence.” The Bank rejected the claim for appointment on the ground noticed as follows at paragraph-23 of the judgement:- “23. In Para 3 of the communication, dated 29-1-2001, the Managing Director of the appellant Bank stated: “In this connection, we have to advise that although our scheme for compassionate appointments does not explicitly state that the deceased employee should have had unblemished service, this is implied. In view of the gross misconduct of late D.K. Jain, the competent authority at this office has declined the proposal for compassionate appointment of his wife Smt Anju Jain in the Bank.” The following observations in paragraph Nos.34 and 35 of the judgement are clinching for the discussion:- “34. To us, the observation of the learned Single Judge that “no past acts of misconduct of the employee who dies in harness can be taken into account while considering the case of a family member for employment on compassionate ground” is not in consonance with law. Past conduct of an employee is undoubtedly an 9 important consideration. We are also of the view that State Bank was right in rejecting the prayer of the wife of the deceased employee vide its letter dated 29-1-2001 observing therein that “unblemished service record is implicit”. “35. The learned counsel for the Bank invited our attention to a decision of the High Court of Delhi in Suman Lata Yadav v. Union of India (2004) 113 DLT 152. In that case, widow of a deceased employee sought employment on compassionate ground following the death of her husband. The request was declined. The widow approached the High Court by filing a writ petition. A counter-affidavit was filed by the Union of India stating therein that on account of disciplinary proceedings and punishment meted out to the deceased, the request of the widow for appointment on compassionate ground was turned down. It was contended on behalf of the widow that the action of the Union of India was illegal and appointment on compassionate ground could not be denied. Dismissing the petition and negativing the argument on behalf of the widow, a Single Judge of the High Court stated:(SLR p.86, para 9) “9. … I am unable to accept this submission. While it is true that the prime object is to provide succour and immediate relief, yet the deceased‟s service record or the factum of disciplinary proceedings and punishment meted out to him, cannot be said to be an irrelevant factor. The possibility of denial of compassionate appointment to the LRs of deceased on account of deceased employee having a tainted service record, would serve as a deterrent to employees from indulging in misconduct. It can act as an incentive for those maintaining discipline and probity. Besides, when the availability of appointment and opportunities is limited, there is nothing wrong in preferring LRs of those employees with clean record over the LRs of those, who have had a tainted record.” In our opinion, the above observations lay down correct proposition of law and we approve them.” 10 It has been held in very clear terms that the courts cannot give any directions for compassionate appointment de hors the policy regulating the same. Sympathy cannot supplant the law as in that event justice may become individualized. In the entirety of the discussion we are satisfied that the appeal deserves to be allowed. The judgement and order dated 11.11.1998 is accordingly set aside. The appeal is allowed, but without costs. Patna High Court/ Dated: 12th of April, 2010 N.A.F.R./KC ( Navin Sinha, J.) ( Dinesh Kumar Singh, J.)