IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. 1416 of 2008 Date of Decision : 21.08.2009 __________________________________________________________ Sheetal Devi ….Petitioner. Versus S.B.I. & others ….Respondents. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. __________________________________________________________ For the Petitioner: Ms.Sunita Sharma, Advocate. For the Respondents : Shri K.D.Sood, Advocate. __________________________________________________________ Dev Darshan Sud, J. This is the second round of litigation between the parties. By judgment dated 30.5.2007 this Court had held that the rejection of the case of the petitioner for compassionate appointment was not in accordance with law. The petition was disposed of with following directions:- “Under the circumstances, I hold that the orders Annexures PE and R-5 cannot be sustained. The same are, accordingly, quashed and set aside. A direction is issued to the respondents to decide the matter afresh. Needless to say that they will take into consideration the present condition of the petitioner and her family and the trends of inflation in the market before concluding about the financial condition of the petitioner. Such decision shall be taken within a period of six months from today. The petitioner will be given an opportunity to be heard in person and to 1 Whether reports of Local Papers may be allowed to see the judgment? Yes. 2 place before the respondents such other or further material as may be required to support her case.” Subsequently, the matter was again considered by the respondents and by an order dated 16.11.2007 Annexure PG her request has been rejected holding that the total income of the family of the petitioner comes to Rs. 3368/- and that the present income is sufficient to meet the requirements of the family. In arriving at this conclusion, the respondents assumed Rs 1033/- plus 250/- i.e. Rs. 1283/- as assumed income of the petitioner per month. The respondent further holds that compassionate appointment is an exception and not a general rule. Mere death of an employee in harness does not entitle his family to stake claim for employment as the bank is a public sector organization with more than 2 lacs employees. The order reads thus:- “The consideration for compassionate appointment of a dependant of the deceased employee should not incur and justify the criticism that the Bank’s decision tends to degenerate into misplaced sympathy, generosity and private benevolence. It is essential to maintain the integrity of proper reasoning and the legitimacy of the conclusion, particularly when such appointment is not a vested right to the dependent of the deceased. Any misplaced compassion may lead to mutually irreconcilable situation and denude the dignity of the administration of the Bank” Eloquent as these words are, order Annexure PG is nothing but a pretence to comply with the order of this Court. When this Court observed that the case of the petitioner shall be considered sympathetically and disposed of by a speaking order, it did not mean that the volume of the content of the writing should spread into a number of pages. It is the quality of reasons to which the Court would look to. It is undisputed that the respondent is a public sector bank with nearly two lac employees. However, there is no dispute to the proposition that compassionate appointment has to be made in accordance with the scheme in force and on the basis of ground realities to help the family of deceased to tide over the financial crisis. This is the basis and rationale on which the entire 3 Scheme of appointment on compassionate grounds is founded. Such appointment is also not meant to exclude people who compete on merit for being considered for jobs with the employer. In Union Bank of India vs. M.T. Latheesh (2006) 7 Supreme Court Cases 350 relied upon by the learned counsel for the respondent, the Court has held that dependents of the deceased employee are not automatically entitled to compassionate appointment which is subject to the limitations as set out therein. Learned counsel appearing for the respondent relies upon a decision of the Supreme Court in Punjab National Bank vs. Ashwani Kumar Taneja (2004) 7 Supreme Court Cases 265 to urge that “4. ……..When the object of compassionate appointment is kept in view with reference to the amounts received by the heirs of the deceased employee, it was submitted that there was no financial hardship. Learned counsel for the respondent submitted that the amounts like gratuity, provident fund, etc .have no relevance for determining the question whether compassionate appointment is to be made. It is to be seen that the appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding appointments being made on open invitation of application on merits. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crisis.” In State Bank of India and another vs. Somvir Singh, (2007) 4 Supreme Court Cases 778 it has been held that “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 4 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 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 (2004) 7 SCC 271 the High Court cannot dilute the criterion of penury to one of “not very well-to-do”. The view 5 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.” These are the parameters laid down by the Supreme Court and this Court sitting in writ jurisdiction under Article 226 of the Constitution of India cannot order appointment on compassionate grounds, unless the case is covered under the Scheme as framed by the Bank. The only jurisdiction of this Court is to examine the decision making process only and to ascertain whether it suffers from any illegality. When the ratio in the judgments cited is applied, all that need be said is that I do not find anything from the reading of record to show that income of the family of the deceased is Rs. 3685/- per month since it has been arrived at by adding notional figures. What was required to be considered was whether the family of the deceased was in such financial comfort which would disentitle her from getting appointment on compassionate grounds or such that she requires the helping hand of the employer for adjustment against some post where she can earn to keep her body and soul intact. It is the decision making process which is to be scrutinized under Article 226 of the Constitution of India. Learned counsel appearing for the petitioner has brought to my notice the fact that the children of the petitioner are ailing and she has to spend money on their treatment and lack of funds would necessitate discontinuance of such treatment. If this be so, surely it is a fact which is to be considered by the respondent. It is but expected that the respondent would reevaluate the demands of the family and to assess the need for employment on compassionate ground not on the basis of constitutional rights but on the basis of the scheme framed by the respondent and keeping in view the fact whether the petitioner and her family are in a state of penury which require redressal. 6 In the facts and circumstances of the case, this petition is allowed. Annexure PG is quashed and set aside. The respondents are directed to reconsider the case of petitioner in the light of what she submits before them. A direction is also issued that the petitioner shall file a detailed representation with the respondents detailing each and every fact supporting it with documentary evidence if so available to show that she requires immediate financial help. Such representation if and when made shall be disposed of by the respondents within a period of four weeks from its receipt after giving a personal hearing to the petitioner, if so requested by her. By an interim order passed by this Court, the respondents have been directed to allow the petitioner to join the contractor who was looking after the cleaning work in the premises of the respondents. This Court has been informed that she has been infact engaged by the contractor. While considering the case of the petitioner, the respondents will of course take into consideration the amount being received by her while doing such work. She will not be discharged from the work being performed by her. August 21, 2009 (Dev Darshan Sud) (ms) Judge