1 IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16620 of 2007 DYANAND YADAV, S/O LATE RAM LAKHAN YADAV, R/O VILLAGE SONWARCHAK, PO- MAHTHI, P.S. BIBHUTIPUR, DISTRICT SAMASTIPUR. ……………………PETITIONER. Versus 1.CHAIRMAN-CUM-MANAGING DIRECTOR, CENTRAL BANK OF INDIA, HAVING OFFICE AT CHANDRAMUKHI, NARIMAN POINT, MUMBAI- 400021, MAHARASTRA. 2.ZONAL MANAGER, CENTRAL BANK OF INDIA, MUZAFFARPUR ZONE, OFFICE AT PAWAPURI BUILDING, GROUND FLOOR, NH-28, BHAGWANPUR, P.S SADAR DISTRICT MUZAFFARPUR. 3.MANAGER, CENTRAL BANK OF INDIA, BRANCH- AROUT, AT & P.O. AROUT, P.S. ROSERA, DISTRICT SAMASTIPUR. ………………………RESPONDENTS. ----------- For the Petitioner : Mr. Shambhu Prasad Singh Advocate For the Central Bank of India : Mr. Ajay Kumar Sinha, Advocate ----------- PRESENT HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (18.04.2011) Mihir Kumar Jha,J. Heard Mr. Shambhu Prasad Singh, counsel for the petitioner and Mr. Ajay Kumar Sinha representing Central Bank of India and its officials. 2. In this case, the claim of the sole petitioner now remains confined for considering his case for appointment on compassionate ground on a plea that his father an employee of Central Bank of India 2 (hereinafter referred to as the Bank) had died while performing official duty on account of being shot dead in a robbery. In this regard it has been submitted by Mr. Singh that originally the mother of the petitioner having regard to the existing situation of the family had nominated her younger son Ghanshyam Yadav for appointment on compassionate ground in her application dated 28.01.2005, wherein this petitioner, the elder son, was also shown to be the dependent of the deceased employee. Such application of the mother of the petitioner had remained pending and in the mean time a new policy had come into force on 16.06.2006, wherein the Bank had altogether abolished the very concept of compassionate appointment w.e.f 14.12.2005, and had substituted it by introducing a scheme of ex-gratia payment in lieu of compassionate appointment with certain pre conditions. Since, the application filed by the mother of the petitioner dated 28.01.2005 was still pending on the date of introduction of the scheme, the Bank by its decision contained 3 in the letter dated 11.04.2007, addressed to the mother of the petitioner had informed that there could be no compassionate appointment of any person from the dependents of the family of the deceased employee and that the family would only qualify for payment of ex-gratia amount. 3. This decision dated 11.04.2007, dis-entitling the family of the deceased to get employment on compassionate ground was accordingly dropped on recall by filing this writ petition on 17.12.2007, wherein both the brothers namely the petitioner and his younger brother Ghanshyam Yadav had sought a direction for appointment of Ghanshyam Yadav on compassionate ground by taking a plea that the banks decision dated 11.04.2007 rejecting the case of appointment of Ghanshyam yadav on account of introduction of the revised policy of the bank dated 16.06.2006 was bad and unsustainable as the same could not be made applicable in the case of petitioner and his family inasmuch as the death of father of the petitioner, the deceased employee had taken place on 4 04.10.2004 at a point of time when Bank's earlier policy of compassionate appointment was still vogue. 4. It has to be noted that Petitioner No. 2 Ghanshyam Yadav during the pendency of this case had died on 25.08.2008 and accordingly I.A No. 6951 of 2008 was filed by the petitioner Dayanand Yadav praying therein to delete the name of Ghanshyam Yadav and also permit him to seek appointment on compassionate ground. This Court by an order dated 01.04.2011 had allowed such prayer of the sole petitioner Dayanand Yadav both for deleting the name of Late Ghanshyam Yadav and also pursuing this writ petition for his appointment on compassionate ground and in this context had passed a reasoned order which being relevant is quoted here-in-below:- I.A.No. 6951/2008 ‘In view of the facts mentioned therein stating about the death of petitioner no.2, Ghanshyam Yadav, the prayer made therein for deleting his name is allowed. Counsel for the petitioner would submit that the reliance placed by the learned counsel for the Bank on the judgment of the Apex Court in the case of State Bank of India & anr. 5 vs. Raj Kumar, reported in 2010(2) BBCJ 353, would not be applicable, inasmuch as the circular dated 7.1.2005 abolishing altogether the concept of compassionate appointment and substituting it by one time ex-gratia lump sum payment which was considered in the aforementioned judgment stands superseded and explained to the extent in the subsequent circular dated 3rd November, 2007, wherein an exception has been carved out as with regard to appointment on compassionate ground in the Bank in para 2.1(a) that where an employee dies while performing his official duty, as a result of violence, terrorism, robbery or dacoity, the dependent of such person shall be entitled for being considered for appointment on compassionate ground. Since the circular is not on record and will have a bearing on the result of this writ application, learned counsel for the petitioner is given liberty to file a supplementary affidavit brining on record the aforementioned circular of the Bank dated 3.11.2007. Since no counter affidavit has been filed by the Bank in this case till today, this Court would direct the competent authority of the Bank not only to file its counter affidavit but also the impact of the aforementioned circular dated 3.11.2007 on the case of the petitioners, taking into account that petitioner no.2 has died during the pendency of this writ application. List this case after two weeks at the top of the list, as prayed for and it is made clear that if on that day the Bank will not file the counter affidavit, respondent no.2, the Zonal Manager shall remain present in person.’ 5. Pursuant thereto the Bank has filed a counter affidavit and the petitioner 6 has also filed supplementary affidavit. 6. The plea of Mr. Singh, learned counsel for the petitioner, is very simple, inasmuch as, he would submit that once the old policy which was in vogue till 13.12.2005, before its being substituted by new policy dated 16.6.2006 w.e.f 14.12.2005, had itself been subsequently restored with modification on 9.4.2008 introducing certain exceptions and amending two of the four conditions for appointment on compassionate ground. Learned Counsel had accordingly submitted that the respondents were required to reconsider the case of the petitioner for appointment on compassionate ground in the light of Bank's modified Circular dated 9.4.2008. 7. Mr. Sinha, learned counsel appearing for the bank however had a strong reservation as with regard to the eligibility of the petitioner for appointment on compassionate ground. Firstly he had submitted that since the death of the deceased employee had taken place on 04.10.2004 and the modified policy 7 as per the bank’s decision dated 09.04.2008 (Annexure-5) had specifically categorized that the scheme shall come into force with retrospective effect from 14.12.2005 and only cases of death after 14.12.2005 would be dealt according to the scheme dated 9.4.2008 and as such the petitioner would not be eligible for his appointment even if his father was killed while performing his official duty as an employee of the Bank. he has also raised a plea that in any event the death of the father of the petitioner would even otherwise not fall within the category of violence i.e. terrorism, robbery or dacoity as specified in the revised Bank's policy dated 9.4.2008. 8. There are two facets to the said submission. Firstly with regard to retrospectivity of the policy dated 16.6.2006, it is not in doubt that prior to 14.12.2005 an old policy was existing which provided consideration for appointment of the dependent family members of the deceased employee. This policy was sought to be replaced on 16.6.2006 by introducing ex- 8 gratia scheme w.e.f. 14.12.2005 and in fact no one after 14.12.2005 was left eligible for seeking appointment on compassionate ground. That policy however, was changed by the bank on intervention of Government of India by a circular of the Bank dated 09.04.2008, which, reads as follows:- "RECRUITMENT& CO.CIRCULAR NO. CO.HRD.2008-2009: 149 PROMOTION DIV. DATE 09.04.2008 FILE NO. 44 DEPT. RUNNNG NO. 22 ALL OFFICES Sub: 1. Appointment of dependents of deceased employees on compassionate grounds in exceptional cases. 2. Scheme for payment of Ex-gratia amount in lieu of appointment on Compassionate grounds. 1. Your attention is invited to our Circular No CO:HRD:2006-2007:57 dated 16.06.2006 advising Model Scheme for payment of Ex- gratia in lieu of appointment of dependents of deceased employees/physically incapacitated employees, which has been introduced in our Bank w.e.f. 14.12.2005 in terms of Government/IBA guidelines and presently in vogue in the Bank. 2. Government of India, vide D.O. letter No. F.18/1/2006-IR dated 19th June 2007, has since advised modification to the existing scheme for payment of ex-gratia providing the compassionate appointment, in exceptional cases, where an employee. (a) dies while performing his officials duty as a result of violence, terrorism, robbery or dacoity: or (b) dies within five years of his first appointment or before he reaches the age of 30 years, whichever is later, leaving a dependent spouse and/or minor children. 3. In terms of Government of India revised guidelines, IBA has circulated vide its circular No. PD/CIR/76/532/1549 dated 19.07.2007, the Revised Model Scheme for adoption by the Bank which has since been approved by the Board of Directors in its meeting held on 24.01.2008, the salient 9 features of which are as under: (a) In cases covered by para 2, appointment on compassionate grounds may be offered to one among the next kin of the deceased employees. (b) The appointment will be made only in the Clerical and Sub-staff cadre. (c) Application for employment under the scheme from eligible next of kin should be received by the bank, at the earliest, in any case not later than 12 months from the date of death of the employee. (d) The appointments made shall conform to the guidelines of the Government of India contained in Banking. Division circulars circulated from time to time. (e) Since penury and want of any means of livelihood should alone decide the need for employment, as observed by the Supreme Court of India, the appointment made under this scheme should also conform to the guidelines contained in IBA's circular No. PD/CIR/76/532/813 dated 23rd August 1996. (f) The scheme shall come into force with retrospective effect from 14.12.2005 and all cases of death occurring after 14.12.2005 on the circumstances as mentioned in Para 2 may be dealt with according to the scheme. (g) Appointment under the scheme is not an entitlement but may be granted at the sole discretion of the Bank looking into the financial conditions of the family and in deserving and eligible cases only. 4. In all other cases, except as mentioned in para 2, Model Scheme for payment of Ex-gratia in lieu of appointment of dependents of deceased employees/ physically incapacitated employees, introduced in our Bank w.e.f. 14.12.2005, as referred in Para 1 above will continue. 5. The contents of this Circular may be brought to the notice of all the staff members." 9. From the reading of the said 10 circular dated 9.4.2008 it would be thus clear as day light that the two categories of types of death were found still capable for consideration of case for appointment on compassionate ground and in dependents of the deceased employee could still get the benefit of consideration for appointment in terms the policy in vogue prior to 14.12.2005, which was later sought to be modified or abolished in view of the policy dated 14.12.2005. In that view of the matter, if the petitioner would falls in either of the two category (a) or (b) quoted above, the Bank would be under obligation to consider the case of the petitioner for his appointment on compassionate ground in the light of the old policy in vogue prior to 14.12.2005. It has to be kept in mind that there is no other circular on record which had made petitioner ineligible for appointment on compassionate ground even if his father as an employee of the Bank had died in harness prior to 14.12.2005 while fulfilling all the conditions under the existing policy. 11 10. Argument of Mr. Sinha that this revised policy dated 9.4.2008 will not be applicable in the case of the petitioner because his father died on 04.10.2004 and since such revised policy had came into force only on or after 14.12.2005, is wholly misconceived. It has to be kept in mind that prior to 14.12.2005, in case of every employee of the bank dying in harness, his dependent family member was eligible for being considered for appointment on compassionate ground and that right was taken away by introducing a circular w.e.f 14.12.2005. Thus when on intervention of the Government of India, a new policy of reintroducing appointment on compassionate ground in certain cases was brought into force by the bank on 09.04.2008, which had also been given retrospective operation from that very date when such policy of abolishing the concept of compassionate ground altogether w.e.f 14.12.2005 and was aimed to cover, all such deaths which had otherwise become ineligible for appointment on compassionate ground due to Bank's policy 12 dated 14.12.2005 any person whose case was pending or was rejected in view of policy dated 14.12.2005 would become eligible for consideration of his case afresh for compassionate ground in the light of revised policy dated 9.4.2008. There can be no two opinion that prior to 14.12.2005, an old policy was already in vogue which required such consideration inasmuch as, the new policy had only come into effect from 14.12.2005, though it had been circulated by the Bank by its circular dated 16.6.2006. Therefore, at least, the petitioner cannot be denied such consideration of his case for compassionate appointment on the ground that his father had died on 04.10.2004 and the policy dated 9.4.2008 as contained in Annexure-5 has been introduced by the bank w.e.f from 14.12.2005. 11. The next submission of Mr. Sinha that even otherwise the petitioner’s father death could not be brought within the ambit of para 2(a) of the circular dated 9.4.2008 inasmuch as, such death did not occur as a result of violence i.e 13 terrorism, robbery or dacoity also cannot be accepted for the simple reason that the First Information Report of the incident in question, Annexure-1 itself goes to show that while the father of the petitioner in capacity of security guard was carrying cash along with a clerk of the bank namely Arun Kumar Lal, he was shot by three unknown persons riding a motorcycle as a result whereof the father of the petitioner became severely injured and died at the spot while the miscreants had run away with the money of the Bank to the tune of Rs. 5,00,000/-. This information was also given by an employee of the bank on duty leading to institution of Rosra P.S Case No. 197 of 2004 for the offences punishable under Section 394/302 of the Indian Penal Code which by itself would be sufficient to show that the father of the petitioner initially became injured and subsequently succumbed to death in course of his official duty on account of highway robbery committed by the miscreants. Normally the bank, in all fairness should not have raised a plea that 14 the father of the petitioner cannot be said to have died on official duty because he had flouted the instructions contained in a circular of the Bank prohibiting carrying of cash on motorcycle, inasmuch as, the circular or the policy of the bank in question dated 16.6.2006 or 9.4.2008 on the subject of compassionate appointment does not distinguish between permissible or impermissible official duty. Thus once it becomes an acknowledged fact that the father of the petitioner in capacity of security guard with another authorized bank official was carrying cash for its being brought to the bank, it will be definitely an act of official duty. The father of the petitioner therefore, must be held to have died while performing his official duty and in fact also in course of robbery and thus qualifying for consideration for appointment on compassionate ground in terms of policy dated 9.4.2008. 12. Mr. Sinha learned Counsel for the Bank has however submitted that he has been instructed by the officials of the Bank 15 to take a stand before this Court in this case that since the robbery has been defined under Indian Penal code, the incident in question leading to death of father of the petitioner would not strictly fall within the ambit of robbery and it would be wholly premature at this stage to bring the death of the father of the petitioner under the scope of robbery. The submission of Mr. Sinha therefore is that the Bank will have to wait for the judgment of conviction for the office of robbery in the pending Criminal case by the competent court before it can consider the case of the petitioner for appointment on compassionate ground. In the considered opinion of this court such submission has to be only noted for its being rejected inasmuch as the police has recorded a substantive criminal case for offence under Section 394 of the Indian Penal Code and proving of such offence or conviction by the court is neither the requirement nor the scope of the circular of the Bank dated 9.4.2008 making provision for compassionate appointment wherein, an 16 immediate consideration has to be given to the member of the deceased family, if the bread earner employee had died in course of official duty. 13. That would bring this court to another submission of Mr. Sinha, that if the case of the death of father of petitioner is covered by robbery, the petitioner would not be entitled for appointment on compassionate ground, inasmuch as, there were four categories out of which only one had been revised and has been reimposed by amending the policy. In this context, he would refer to Annexure-A, i.e the policy dated 16.06.2006, by which the policy of compassionate appointment was altogether abolished by the bank w.e.f. 14.11.2005 and the ex-gratia payment was made applicable to following four categories:- '(3) To whom the scheme will be applicable:- (i) Employee dying in harness (other thandue to injury while performing official duty). (ii) Employee dying due to injury sustained while performing official duty within or outside office premises(excluding trave from residence to place of work and back). (iii) Employee dyig while performing official duty within or 17 outside the office premises (excluding trave from residence to place of work and back) due to dacoity/robbery/terrorist attack. (iv) Employee seeking premature retirement due to incapacitation before reaching the age of 55 years. 14. It is the reading of Mr. Sinha that since out of these four categories only one had been included in the bank circular dated 09.04.2008, the petitioner, still be covered by the old policy of payment of ex- gratia amount, inasmuch as, there is the category (ii) about employee dying while performing the official duty and after the death of the father of the petitioner he could be brought under only this category. 15. This Court also cannot accept such submission for a simple reason that each policy had its own specific purpose and therefore, when the earlier age old policy of making appointment on compassionate ground was sought to be substituted by a policy altogether carving out a new scheme for payment of ex-gratia amount in lieu of compassionate appointment categorizing the persons who were entitled for such payment of ex-gratia amount, the same could not be 18 made a yardstick specially when the subsequent circular dated 9.4.2008 seeks to restore the position of compassionate appointment as was existing on or before 14.12.2005. 16. Therefore, four categories of the circular dated 16.06.2006 quoted above has to be understood in the context that the persons who were eligible for ex-gratia payment were in the two categories, namely death taking place in course of official duty on account of sustaining injury and death taking place in course of performing official duty on account of terrorism, dacoity and robbery. Though both the types of death had qualified for payment of ex- gratia amount but when the revised circular dated 9.4.2008 was issued, the death in for more category namely on account of sustaining injury in course of official duty did not qualify for appointment on compassionate ground whereas death of an employee of the Bank on official duty due to terrorism dacoity or robbery was carved out as an exception for giving appointment on 19 compassionate ground. 17. It has to be also kept in mind by Bank's own decision in circular dated 9.4.2008 pursuant to the Government of India policy, two types of death of an employee still qualify for appointment on compassionate ground, one is that the death occurring on account of violence, terrorism, robbery or dacoity and the other that employee has died within 5 years of his first appointment or before he had reached the age of 30 years, whichever is later. It has to be noted that 'violence' was nowhere provided in the Bank's Circular dated 16.6.2006 making banks employee eligible to earn only ex-gratia amount in lieu of compassionate appointment but then Government of India had also categorized violence and included it in such category with terrorism robbery or dacoity qualifying for compassionate appointment. The expression Violence in its own sweep would cover all such death which had been caused on account of external force applied against a person without there being any intention 20 for himself to kill oneself. Therefore, four categories of death including robbery by themselves involve some sort of violence which would go to show that the main consideration of the bank while carving out the exception was that the employees who had lost their lives due to external force while performing the official duty were entitled for appointment on compassionate ground as was also earlier in vogue prior to 14.12.2005. Once this aspect becomes clear that there would be no difficulty in rejecting the submission of Mr. Sinha, that the new policy adopted by the Bank on 09.04.2008 did not include the death of the father of the petitioner. 18. It is thus clear that the policy of the bank dated 09.04.2008, providing for consideration for appointment on compassionate ground will have to be judged in the light of the old policy by restricting the consideration of only two categories of death enumerated in the policy dated 09.04.2008 and for the rest of them there will be no compassionate appointment 21 as the bank had decided on 16.06.2006, giving it retrospective effect from 14.12.2005. 19. The submission of Mr.Sinha, that as the mother of the petitioner had not nominated this petitioner but only his younger son Ghanshyam Yadav and Ghanshyam Yadav had already died and therefore, the petitioner’s case cannot be considered afresh for appointment on compassionate ground can also not be accepted by this Court. The decision of refusal of Ghanshyam Yadav for appointment on compassionate ground was taken on 11.4.2007 and such decision of the Bank at the behest of this petitioner and Ghanshyam Yadav had been questioned in this writ petition before this court and is pending since 17.12.2007. Thus if, the Bank could consume a period of more than 2½ years only in rejecting the case of Ghanshyam Yadav and the death of Ghanshyam Yadav has taken place during the pendency of this writ petition, such rejection of the case of Ghanshyam Yadav being contrary to the Bank's own policy, the petitioner 22 Dayanand Yadav cannot be non suited on a technical ground. It has to be kept in mind that if the policy as per the judgment of the Apex Court in the case of Rajkumar (supra)has been interpreted to apply to any pending application despite death taking place prior to the introduction of policy, the Bank at