IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR <<>> :: O R D E R :: Harsh Kumar Sharma Vs. The State Bank of Bikaner & Jaipur & others. S.B. CIVIL WRIT PETITION NO. 2359/2003. Date of Order :: 2nd January 2008. PRESENT HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. Vikas Bijarnia ] Mr. G.R.Punia ] for the petitioner. Mr. P.K.Lohra for the respondents. .... BY THE COURT: By way of this petition for writ in the second round of litigation in his claim for compassionate appointment, the petitioner seeks to question the communication dated 19.04.2003 (Annex.15) issued by the respondent-Bank while rejecting his representation submitted in pursuance to the order passed by this Court in CWP No.841/2003; and seeks directions for compassionate appointment because of demise of his father while serving with the respondent-Bank. The petitioner has averred that his father, while serving as 1 Special Assistant at Sadalpur Branch of the respondent-Bank, met with an accident and succumbed to the injuries on 15.04.1999; that he made an application to the respondent-Bank for according him compassionate appointment and was asked to complete the formalities as stated in the letter dated 08.06.1999 (Annex.4); that he submitted all the requisite information and completed all the formalities (vide Annex.5 & Annex.6), submitted affidavits (Annex.7 & Annex.8) and an undertaking (Annex.10) that he shall maintain the dependents of his father on being provided appointment; that when nothing was done in the matter, again an application (Annex.11) was submitted by his mother for according him compassionate appointment stating the hardship faced by the family; and so was submitted an affidavit (Annex.12) sworn by Smt. Chanda Devi, aunt of the petitioner, stating that her husband was mentally ill and they were also dependent on the petitioner’s family. The petitioner has pointed out that other queries were raised as to why his father took private loans and as to why younger son of the employee (the petitioner) was seeking appointment instead of the elder son Shri Rakesh Sharma. The petitioner has averred that his father took loan in hardship as he was maintaining about 14 members of the family; and has further averred that his elder brother Rakesh Sharma was also mentally ill, having no source of income. 2 The petitioner has taken the averments that upon inquiring about the progress in the matter, he was shown a letter bearing date 21.02.2001 whereby the respondent No.3 informed the respondent No.4 that the claim of the petitioner had been rejected by the order dated 12.01.2001. According to the petitioner, the respondent authorities never served upon him the letter dated 12.01.2001. The petitioner has alleged that one Pawan Kumar Siklighar has been accorded compassionate appointment though the deceased employee, his father, was facing inquiry and was under suspension; that likewise, one Manohar Singh son of Deep Chand has also been accorded appointment as Peon; that the father of the petitioner had an unblemished career and died in harness and looking to the facts, the petitioner ought to have been appointed on the suitable post. The petitioner has further averred that though the respondent-Bank had provided appointment to as many as 26 incumbents but his candidature was not considered for any valid reason and, therefore, he approached this Court by way of the aforesaid writ petition (CWP No.841/2003); and this Court disposed of the writ petition on 26.02.2003 with directions to the respondents to consider his case in accordance with the Rules within eight weeks and if not accepting his claim then to pass speaking and reasoned order. Copy of the order dated 26.02.2003 has not been annexed with 3 the writ petition; however, the same has been supplied during the course of arguments and shall be referred hereafter. The petitioner has averred that in compliance of the order passed by this Court, he submitted a representation on 06.03.2003 (Annex.14) with copy of the writ petition but the representation was decided by the respondent No.2 under the communication dated 19.04.2003 (Annex.15) apprising the petitioner that his claim had been turned down because in all five members were the dependents of the deceased and the family has received Rs.4,85,548/- as retiral benefits and that the mother of the petitioner was in receipt of family pension of Rs.4,288/- per month. Stating himself being aggrieved of the said communication dated 19.04.2003 (Annex.15), the petitioner has preferred this writ petition on the grounds that he deserves to be appointed on compassionate ground to redeem the hardship of the family for his father having died in harness; that his father left behind 10 members of the family, of which two were the married daughters but, 8 of the family members were totally dependent on him and further 6 family members of his mentally disturbed brother were also dependent on him; that in all 14 members were dependent on the deceased employee but the Bank has not considered their hardship and has turned down the claim of the petitioner without any basis; that the ground stated by the respondents of rejection 4 of the claim of the petitioner about payment of retiral benefits etc. cannot be said to be logical because from out of the amount received by the family, a large sum had to be paid to the various creditors and then, one daughter of the deceased employee was to be married; that in the matter of compassionate appointment technicalities should not be applied; that the petitioner has been handed out hostile discrimination when even the dependent of the employee who was facing disciplinary proceedings had been accorded compassionate appointment despite his having other source of income but the case of the petitioner has not been considered; that the authorities are bound to consider appointment on compassionate ground in a fair manner and are not entitled to pick and choose; that the Hon'ble Supreme Court has explicitly laid down the guidelines to avoid delay and dilatory tactics but the authorities have not acted in accordance with law; that the authorities have casually and mechanically turned down the claim of the petitioner under the impugned communication dated 19.04.2003 after directions were issued by this Court to consider his case; that the reasoning of the family receiving certain amount is not in accord with the dictum of the Hon'ble Supreme court that the amount received in retiral benefits or pension cannot be taken into consideration for the purpose of appointment on compassionate grounds. While stressing on the grounds aforesaid, learned counsel for the petitioner has placed 5 reliance on the decision of the Hon'ble Supreme Court in the case of Balbir Kaur & Anr. Vs. Steel Authority of India Ltd. & Ors. :2000 (6) SCC 493 and of this Court in the case of Suresh Kumar Sharma Vs. Union of India & Ors. : 2003 WLC (UC) 317 and Kuldeep Kalla Vs. State Bank of India & Ors. : 2007 (1) DNJ (Raj.) 94. Learned counsel has also placed for consideration a communication dated 01.05.2006 from the respondent-Bank reducing the amount of pension for the family after 7 years from the date of death of the employee only to Rs.1616/-. The respondents have filed reply to the writ petition taking preliminary objections that the object of providing appointment on compassionate ground is to enable the penurious family of the deceased employee to tide over sudden financial crisis and not to provide employment; that mere death of an employee in harness does not entitle the family to such source of livelihood; that for offering appointment on compassionate grounds, the financial condition of the family of the deceased is of paramount consideration. According to the respondents, they have considered the entire factual matrix while issuing the impugned communication dated 19.04.2003 (Annex.15) and thereafter declined the request of the petitioner as there is no material on record to suggest that the family of the deceased employee is unable to meet the financial crisis. While referring to various 6 decisions of the Hon'ble Supreme Court and of this Court, it is contended that for long time having elapsed, offer of compassionate appointment would not serve any purpose and such an appointment is not a vested right to be exercised any time. It has also been averred that the petitioner has already approached this Court earlier in writ petition No.841/2003 and the same was disposed of by this Court and thus, this second petition for the same relief is not maintainable. The respondents have imputed misrepresentation and suppression of material fact upon the petitioner with reference to his averment that the letter dated 12.01.2001 was never served upon him; and, while annexing the documents Annexure-R/1 to Annexure-R/3, the respondents have stated that after receiving a communication of rejection of the claim of the petitioner, the 4th respondent under his letter No.905 dated 12.01.2001 conveyed the same to the petitioner through the letter delivered as per the Delivery Book of the Bank. While admitting the fact of the father of the petitioner dying while in service, the respondents have put to contention the averments that the petitioner belongs to a poor family and have also pointed out that the petitioner had completed his graduation in the year 1997, two years before demise of his father. It has further been contended that the members of the family of the brother of the employee cannot be treated as his dependents 7 and, therefore, the facts stated in the affidavit (Annex.12) of Smt. Chanda Devi are of no relevance. The respondents have also put to dispute the assertion of the petitioner that his elder brother Rakesh Sharma was mentally ill and it has been pointed out that the said brother of the petitioner is also a graduate and such fact (of mental illness of the brother) is not born out from the affidavit of the petitioner (Annex.7) and it is also found that the said Mr. Rakesh Sharma is a married person. The submissions regarding employment of other persons have been replied with the submissions that the petitioner has taken vague averments in that regard bereft of necessary details; and even otherwise the examples stated by the petitioner are factually distinguishable and are of no avail. While placing on record the Scheme for Compassionate Appointments as framed on 28.03.1987 and as modified on 11.03.1997, the respondents have contended that according to the criteria laid down in para (v) of the modified Scheme, the petitioner was not entitled for compassionate appointment and his request was rightly turned down. It has also been asserted that the representation of the petitioner has been considered objectively and taking into consideration the entire factual situation and the prevailing Scheme, compassionate appointment was rightly declined. While opposing the petition, learned counsel for the respondents has placed reliance on the decisions of the Hon'ble Supreme Court in Umesh Kumar Nagpal 8 Vs. State of Haryana and others: (1994) 4 SCC 138; Life Insurance Corporation of India Vs. Asha Ramchhandra Ambekar (Mrs) and another: (1994) 2 SCC 718; Punjab National Bank and others Vs. Ashwini Kumar Taneja: (2004) 7 SCC 265; General Manager (D&PB) and others Vs. Kunti Tiwary and another:(2004) 7 SCC 271; Union Bank of India and others Vs. M.T.Latheesh: (2006) 7 SCC 350; State Bank of India and another Vs. Somvir Singh: (2007) 4 SCC 778 and a decision of this Court in State Bank of Bikaner and Jaipur & ors. Vs. Vishnu Parihar: D.B.Civil Special Appeal (Writ) No.218/2004, decided on 14.07.2004. Having given a thoughtful consideration to the rival submissions and having examined the material placed on record, this Court is clearly of opinion that the present writ petition remains totally bereft of substance and deserves to be dismissed. Compassionate appointment, an exception to the general rule of open recruitment, is intended to meet the immediate financial problems, if so faced, by the bereaved family of the deceased employee. The very object of providing compassionate appointment to a dependent of deceased employee who dies in harness is to relieve the family of hardship and distress caused due to sudden demise of the bread-earner of the family. Such provisions for compassionate appointments, by their very nature, 9 are in exception to the general procedure prescribed for making appointments; and are required to be applied while keeping in view the fact that by making such appointment other eligible persons are deprived of their chance to seek employment. The Hon'ble Supreme Court in the case of Director of Education (Secondary) Vs. Pushpendra Kumar : (1998) 5 SCC 192 has pointed out thus: “The object underlying a provision for grant of compassionate employment is to enable the family of deceased employee to tide over the sudden crisis resulting due to death of the bread- earner which has left the family in penury and without any means of livelihood. Out of pure humanitarian consideration and having regard to the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made for giving gainful appointment to one of the dependent of the deceased who may be eligible for such appointment. Such a provision makes a departure from the general provisions of making appointment by following a particular procedure. Since such a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions. An exception cannot subsume the main provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision. Care has, therefore, to be taken that provision for grant of compassionate employment, which is in the nature of an exception to the general provisions, does not unduly interfere with the right of other persons who are eligible for appointment to seek employment against the post which would have been available to them, but for the provision enabling appointment being made on compassionate grounds of the dependent of a deceased employee.” 10 The Scheme for Appointment of Dependant of Deceased Employees, as modified by the respondent-Bank on 11.03.1997 (Annex.R/5) is in conformity with the fundamentals of the principles aforesaid; and in its Clause (v) provides for taking into consideration the financial condition of the family with reference to various facts and factors including Family Pension, Gratuity, Provident Fund, Any Compensation Amount, Proceeds of LIC Policies, Income from Other Sources, Income of Other Members of Family. The suggestion that retiral benefits are not to be taken into consideration while dealing with the prayer for compassionate appointment cannot be accepted for the principles settled by the Hon’ble Supreme Court in that regard. In Ashwini Kumar Taneja's case (supra), the Hon'ble Supreme Court has said,- ''One other thing which needs to be considered is whether the retiral benefits are to be taken into consideration while dealing with prayer for compassionate appointment. The High Court was of the view that the same was not to be taken into consideration. The view is contrary to what has been held recently in G.M. (D&PB) v. Kunti Tiwary. It was categorically held that the amounts have to be taken into consideration'' In Kunti Tiwary's case (supra), while taking note of the aforesaid factors relevant for consideration of a claim for compassionate appointment, the Hon'ble Supreme court has held,- ''On the basis of the criteria as recommended by the Indian Banks' Association and adopted by the 11 appellant Bank, it could not be said that the family of the late K.N.Tiwary had been left in ''penury'' or ''without any means of livelihood''. The particulars of their income have been noted in their application and it certainly could not be said on the basis thereof that the respondents were living hand to mouth. The Division Bench erred in diluting this criteria of penury to one of ''not very well-to-do''. The facts and the factors required to be taken into consideration while dealing with a claim for compassionate appointment include the financial status of the family as emphatically settled by the Hon'ble Supreme Court in the series of decisions. Instead of multiplication of authorities, suffice is to point out the law declared by the Hon'ble Supreme Court in Somvir's case (supra) thus: ''12. The competent authority while considering the application had taken into consideration each one of those factors and accordingly found that the dependants of the employee who died in harness are not in penury and without any means of livelihood. The authority did not commit any error in taking the terminal benefits and the investments and the monthly family income including the family pension paid by the Bank into consideration for the purposes of deciding as to whether the family of late Zile Singh had been left in penury or without any means of livelihood. The scheme framed by the appellant Bank in fact mandates the authority to take those factors into consideration. The authority also did not commit any error in taking into consideration the income of the family from other sources viz. the agricultural land. 13. In our considered opinion, the High Court itself could not have undertaken any exercise to decide as to what would be the reasonable income which would be sufficient for the family for its survival and whether it had been left in penury 12 or without any means of livelihood. The only question the High Court could have adverted itself to is whether the decision-making process rejecting the claim of the respondent for compassionate appointment is vitiated? Whether the order is not in conformity with the scheme framed by the appellant Bank? It is not even urged that the order passed by the competent authority is not in accordance with the scheme. It is well settled that the hardship of the dependant does not entitle one to compassionate appointment dehors the scheme or the statutory provisions as the case may be. The income of the family from all sources is required to be taken into consideration according to the scheme which the High Court altogether ignored while remitting the matter for fresh consideration by the appellant Bank. It is not a case where the dependants of the deceased employee are left ''without any means of livelihood'' and unable to make both ends meet. The High Court ought not to have disturbed the finding and the conclusion arrived at by the appellant Bank that the respondent was not living hand-to-mouth. As observed by this Court in G.M. (D&PB) v. Kunti Tiwary the High Court cannot dilute the criterion of penury to one of ''not very well-to-do''. The view taken by the Division Bench of the High Court may amount to varying the existing scheme framed by the appellant Bank. Such a course is impermissible in law.'' In view of the law declared by the Hon'ble Supreme Court in no uncertain terms, with respect, the decisions of this Court in Suresh Kumar Sharma and Kuldeep Kalla's cases cannot be read as laying down the rule that retiral benefits received by the heirs of the deceased cannot be taken into consideration while dealing with a prayer for compassionate appointment The decision in Balbir Kaur's case (supra), as pointed by the Hon'ble Division Bench of this Court in Vishnu Parihar's case (supra), 13 turns on its own facts for the policy of the Steel Authority of India Limited being entirely different. While rejecting the claim for compassionate appointment in Vishnu Parihar's case, the Hon'ble Division Bench has said,- ''In the circumstances, we have no hesitation in holding that the Sita Ram Parihar's family was sufficiently provided for and the request of the respondent for compassionate appointment was rightly declined by the Bank. Learned counsel for the respondent relied upon the decision of the Supreme Court rendered in the case of Balbir Kaur Vs. Steel Authority of India Ltd. & Others (2000 (6) S.C.C. 493). That case turns on its own facts. The policy of Steel Authority of India was entirely different from the policy of the Bank in the matter of compassionate appointments.'' The fact as stated by the learned counsel for the petitioner about reduction of family pension now is, again, of no relevance for considering the claim for compassionate appointment. On the contrary, with the lapse of reasonable time and for the relevant facts and factors, there appears no reason to doubt the conclusion reached by the authorities that the family is not in penurious conditions; and the claim of the petitioner does not inspire confidence. The significant facts noticeable from the particulars of family as stated in the document Annexure-5 are that Rakesh Sharma, the elder son of the deceased employee was shown married and graduate in 26 years of age. The petitioner, younger son, has also been shown married and graduate in 23 years of 14 age. To state larger number of members in the family, the petitioner had chosen to incorporate the name of the daughters- in-law and the married daughters of the deceased employee also. Then, the number of dependants was sought to be increased while stating that a brother of the deceased employee was mentally ill and his family was also dependent on the petitioner's family. When the question arose about the elder son of the deceased employee not seeking employment, reply was made to the effect that he was also mentally ill. No medical proof in that regard appears to be available on record. The overall facts and circumstances have definitely been taken into consideration by the authority concerned while deciding on the representation dated 06.03.2003 under the impugned communication dated 19.04.2003 (Annex.15) while stating,- ''In compliance with the directions given by the Hon'ble High Court of Rajasthan at Jodhpur vide its order dated 26.2.2003 in SB Civil Writ Petition No. 841/2003 filed by you, I have considered your representation dated the 6th March 2003 for compassionate appointment in the Bank. The whole object of granting compassionate appointment is to enable the dependents of the deceased to tide over the sudden crisis due to the death of the sole bread winner. In terms of the extant rules, the mother, widow, two sons and a daughter, total five members are the dependents of the deceased, and as such, the other persons mentioned in your representation are not covered under the purview of the dependents. Further, your mother has received a net sum of Rs.4,85,548/- as retiral benefits accrued on death of your father, after adjusting the various 15 loans taken by him. In addition to this, a family pension of Rs.4,288/- per month is also being paid to your mother. Keeping in view the Government of India guidelines and various pronouncements of the Hon'ble Supreme Court, the family profile, the capacity of family members to earn independently and other extenuating circumstances, I regret that, having considered all the aspects, your request for appointment on compassionate grounds is not found acceptable.'' The conduct of the petitioner also does not appear to be free from doubts. The earlier writ petition (CWP No.841/2003) seems to have been filed only in the year 2003, about 4 years from the date of death of the father of the petitioner. Reasonable time had already elapsed even at the time of filing of the earlier writ petition. Then, the petitioner maintained the said petition only on the assertion that the respondents were not deciding his case and did not responded to his representation dated 17.01.2002. This Court disposed of the writ petition on 26.02.2003 without notice to the other side but only with directions to the respondents to decide the case of the petitioner within eight weeks. This Court observed and ordered thus: ''This writ petition has been filed for seeking employment on compassionate ground. The facts and circumstances giving rise to this case are that the petitioner's father, while working with the respondent Bank, died on 15.4.1999. The petitioner submitted an application dated 8.6.1999 for employment on compassionate ground. In the meanwhile, certain other informations were sought by the respondents which petitioner furnished on 16 16.7.1999, 1.9.1999 and again on 25.2.2001, but,