-1- Civil Writ Petition No.20118 of 2005. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Date of Decision: March 03,2008. Laxmi Devi and another ... Petitioners VERSUS Central Bank of India and others ... Respondents CORAM : HON'BLE MR.JUSTICE HEMANT GUPTA. HON'BLE MR.JUSTICE MOHINDER PAL. 1. Whether Reporters of Local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? Present: Mr. Anil Rathee, Advocate, for the petitioners. Mr.A.P. Jagga, Advocate, for respondents Nos. 1 to 4. None for respondent No.5. -.- MOHINDER PAL, J. Husband of Laxmi Devi (petitioner No.1) and father of Pawan Singh Lamba (petitioner No.2), namely, Surat Singh Lamba was working as Gunman (Guard) in the Central Bank of India, Charkhi Dadri Branch, District Bhiwani (respondent No.4) since -2- Civil Writ Petition No.20118 of 2005. May 15, 1984. Unfortunately, Surat Singh Lamba died in harness on July 14, 2001. After his death, as Laxmi Devi (petitioner No.1) was suffering from Asthma, she requested the respondent-Bank to give appointment to her son Pawan Singh Lamba (petitioner No.2), who is B.A. Application dated July 31, 2001 (Annexure P-2) was submitted by her in this regard to the Regional Manager, Regional Office, Central Bank of India, Model Town, Jawahar Market, Rohtak (respondent No.3). On receipt of application (Annexure P-2), respondent No.3 directed petitioner No.1 to give details of her other children and also the source of income of the family etc. Petitioner No.1 then made fresh application dated August 27, 2001 (Annexure P-3) and furnished details as required by respondent No.3. Thereafter, the petitioners kept on making constant inquiries from the respondent-Bank about the fate of their request and, ultimately, letter dated March 11, 2003 (Annexure P-5) was sent by respondent No.2 to respondent No.4 conveying that the Central Office had shown its inability to consider compassionate appointment case of petitioner No.2 and the petitioners be informed accordingly. For rejecting the case of compassionate appointment of respondent No.2, the following reasons were cited in the letter Annexure P-5:- “ From the information submitted it has -3- Civil Writ Petition No.20118 of 2005. been observed that financial condition of the family is adequate, therefore, as per Government/IBA guide-lines, we are unable to consider for appointment of Shri Pawan Singh. Please inform the applicant suitably” Aggrieved from this order, the petitioners approached this Court by way of filing Civil Writ Petition No.17357 of 2003. In that case, the respondent-Bank filed written statement taking the stand that the petitioners were regularly getting a pension of Rs.2700/- per month and they had also received Rs.1.68 lacs as retiral benefits. Civil Writ Petition No.17357 of 2003 was allowed vide judgment dated August 09, 2005 (Annexure P-6) by passing the following order:- “ We have carefully gone through the file and find that the respondents have not considered the implication of the judgment of the Hon'ble Supreme Court in Punjab National Bank v. Ashwini Kumar Taneja, 2004 (4) RSJ 111. We are also of the opinion that some of the figures with regard to the income etc. are improbable -4- Civil Writ Petition No.20118 of 2005. and exaggerated. We accordingly allow the writ petition and quash the order dated 11.3.2003, Annexure P-5, with a direction to the respondents to take a fresh look in the matter in the light of the judgment aforesaid and also to take a realistic view with regard to the income of the family from various sources. The final decision in the matter shall be taken within two months from the date a certified copy of the order is supplied to them. “ The petitioners once again approached the respondent-Bank through representation dated August 29, 2005. However, the claim of the petitioners was rejected vide order dated October 29, 2005 (Annexure P-7). In this petition filed under Articles 226/227 of the Constitution of India, the petitioners have prayed for issuance of a writ in the nature of certiorari, thereby quashing the order dated October 29, 2005 (Annexure P-7) and for issuance of a direction to the respondent-Bank to offer appointment to petitioner No.2 Pawan Singh Lamba on compassionate ground with immediate effect. It has been averred in the writ petition that the action -5- Civil Writ Petition No.20118 of 2005. of the respondent-Bank in not giving appointment to petitioner No.2 is not only contrary to the policy decision taken by the Bank, but also arbitrary. On the one hand, the Bank rejected the claim of the petitioners on the ground that financial position of the petitioners is not bad, but on the other hand, the Bank has granted appointment to the dependant of one R.P. Khanna, who died after the death of Surat Singh Lamba, husband of petitioner No.1 and father of petitioner No.2. It has been pleaded that the family of R.P. Khan got about Rs. 10 lacs as gratuity, provident fund and other benefits and his widow was granted family pension of Rs.8,000/- per month. Besides, the family of R.P.Khanna owned a Bungalow in Model Town, Rohtak, and a number of plots. However, in case of petitioner No.1, who was drawing a family pension of Rs.2700/- per month, the benefit of compassionate appointment has been declined by adopting the double yardstick. In the written statement filed by the respondents, a preliminary objection has been taken that the widow of R.P. Khanna, who was given compassionate appointment by the respondent-Bank, has not been impleaded as a party by the petitioners and that this petition is bad for non-joinder of necessary party. It has further been pleaded that the petitioners cannot claim compassionate appointment relying upon the compassionate appointment granted to other persons, who were -6- Civil Writ Petition No.20118 of 2005. considered as genuine cases. The respondents took further stand that the case of compassionate appointment to R.P. Khanna's widow had arisen before the era of Voluntary Retirement Scheme (for short `VRS'). It was only when the VRS was introduced that the Banks had realized the urgent need to shed the surplus staff. The position would thus be ironical that, on the one hand, the Bank was shedding the surplus staff and on the other hand, employing people without any requirement of additional staff and thus causing unnecessary financial constraint on public money. Further more, while approving the case of compassionate appointment of the dependant of R.P. Khanna, the competent authority had taken into consideration the financial position of the family. It has further been averred by the respondent-Bank that the cases of compassionate appointment are accepted currently by the Bank in extreme circumstances only as this has been held to be a back door entry and that too in an era in which the Bank is cutting short its strength by introducing the VRS in order to save the precious public money from being squandered in avoidable expense by way of salary. The plea taken by the petitioners that the family of R.P. Khanna owned a bungalow in Rohtak and a number of plots, has been denied by the respondents for want of knowledge. It has been stated that the order dated October 29, 2005 (Annexure P-7) has been passed by the respondent-Bank keeping -7- Civil Writ Petition No.20118 of 2005. in view its guide-lines on the subject and after due application of mind by the competent authority. We have heard Mr. Anil Rathee, Advocate, appearing for the petitioners and Mr.A.P. Jagga, Advocate, appearing for respondents Nos. 1 to 4 and have gone through the records of the case. On November 20, 2007, this Court had passed the following order:- “ As per the stand taken by the respondents in the impugned order and in the written statement, the compassionate appointment has been denied to the petitioner on the ground that financial position of the petitioner is good. In this regard, it has been mentioned that the petitioner is earning Rs.974/- per month on account of interest on the amount of Rs.1.68 lacs and further that a family pension of Rs.2891/- per month being received by the family. Therefore, keeping in view the total earning of Rs.3865/- per month as family income of the petitioner, her financial position is stated to be good. Counsel for the petitioner referred to the -8- Civil Writ Petition No.20118 of 2005. facts mentioned in paragraph 10 of the writ petition wherein it has been specifically mentioned that dependant of one deceased employee Mr.Khanna has been given compassionate appointment though the monthly income of that family was more than Rs.8000/- per month. It has been further sated that the said family has also received Rs.10 lacs as gratuity, provident fund and other benefits. It has also been stated that the said family owned a bungalow in Model Town, Rohtak and having a number of plots. In the reply, these facts are denied for want of knowledge. It is very strange that how the answering respondents are not aware of the monthly family pension received by the dependants of its deceased employee. It appears that the respondents have not filed the reply correctly. Therefore, the Regional Manager, who has singed the written statement, is directed to be present in Court along with records on the next date of hearing. Adjourned to 10.1.2008.” -9- Civil Writ Petition No.20118 of 2005. In compliance of the order dated November 20, 2007, affidavit was filed by Mr. P.J. Kumar, Regional Manager, Central Bank of India, Regional Office, Rohtak, on January 10, 2008. Although the observations made by this Court in the order dated November 20, 2007, that the total earning of the petitioners per month was Rs.3865/- and that of the dependants of Mr.R.P. Khanna was more than Rs.8,000/- per month besides the family of Mr. Khanna having received Rs.10 lacs as gratuity, were in a way admitted by the respondent- Bank, but still Mr. P.J. Kumar, Regional Manager, tried to defend the averments made in the reply that petitioner No.2 was rightly declined compassionate appointment. A perusal of the affidavit filed by Mr.P.J.Kumar reveals as if it was filed just to depict the income of the petitioners and that of the dependant of Mr. R.P. Khanna. After mentioning the difference between the income of the petitioners and that of the dependant of Mr.R.P.Khanna which on the face of it is in conformity to the observations of this Court made in the order dated November 20, 2007, the Regional Manager endeavoured to justify the action of the respondent-Bank in not providing compassionate appointment to petitioner No.2 on the ground that the income of the family of the petitioners after the death of their bread- winner was higher than the income of the family prior to the -10- Civil Writ Petition No.20118 of 2005. death of the bread-winner taking into account the pensionary and retiral benefits. The same could be said in the case of Mrs.Sunita Khanna whose husband Mr.R.P. Khanna was Assistant Manager in the respondent-Bank and, admittedly, owned one self occupied house i.e House No.132-R, Model Town, Rohtak, but she was appointed on compassionate ground. Her appointment has been sought to be justified by the respondent- Bank on the flimsy and unacceptable ground that after the death of Mr.R.P. Khanna, the income of the family was reduced to Rs.9,713/- though she had received Rs. 10 lacs as gratuity, provident fund and other benefits. In the affidavit filed by Mr.P.J. Kumar, it has not been denied by him that an amount of Rs.10 lacs was received as gratuity by the dependants of Mr.R.P. Khanna. However, much stress has been laid on the point that husband of petitioner No.1 owned about 20 Kanals of agricultural land which could, approximately, yield crop of Rs.18,000/- per annum. It is a matter of common knowledge that the Heads of the Departments in Government offices and Nationalized Banks are always in the know of the properties of their employees because as and when any property is purchased or sold by the employees, they have to take permission from the Department and to inform it after the transaction. However, in the case of the petitioners, when application dated July 31, -11- Civil Writ Petition No.20118 of 2005. 2001 (Annexure P-2) was submitted for compassionate appointment of petitioner No.2, the respondent-Bank sought various details from the petitioners regarding their income from other sources besides pension and gratuity etc. Then, the petitioners made another application dated August 27, 2001 (Annexure P-3) annexing therewith affidavit of Laxmi Devi (petitioner No.1) stating that she was the only legally wedded wife of Surat Singh Lamba; that she was a poor widow and there was no other source of income with her and all her children were unemployed and unmarried; and that her husband was the only earning member in her family and whole family was dependant upon him. Another affidavit of petitioner No.1 was attached with the application stating that if petitioner No.2 was provided compassionate appointment, her remaining three children, namely, Punam (minor daughter), Amit Singh and Anil Kumar (minor sons) would have no objection. Petitioner No.2 also attached his affidavit with application (Annexure P-3) stating that he was the eldest son of Surat Singh Lamba, who was working as Guard in the respondent-Bank and that he would look after the family of the deceased. Affidavit of Partap Singh, Sarpanch of the Village where the petitioners reside, was also attached with the application stating that Surat Singh Lamba was a poor man of Village Sehore; that he had four children; that petitioner No.1 has no source of income except -12- Civil Writ Petition No.20118 of 2005. pension and that she has no house to live in. In view of the above facts and circumstances, when the stand of the respondent-Bank prima facie showed application of different yardsticks while considering the claim of the petitioner for appointment on compassionate ground viz-a-viz case of Mrs. Sunita Khanna, on January 10, 2008, the following order was passed by this Court:- “ The challenge in the present writ petition is to the order dated 29.10.2005 (Annexure P-7) whereby claim of petitioner No.2 for his appointment on compassionate ground was declined for the reasons that income of Rs.3865/- is more than take home salary of Rs.3212/- of the deceased. It has come on record that one Mrs.Sunita Khan has been appointed on compassionate ground in the year 2002 i.e almost at the same time when the claim of the petitioner for compassionate appointment was pending consideration. The carry home salary of Mr.R.P.Khanna was Rs.12,447.25 and keeping in view the interest on the retiral benefits approximately 10 lacs, the monthly income -13- Civil Writ Petition No.20118 of 2005. was found to be Rs.9713/-. The Bank has found that such income is less than the amount being received by the family of Mr.Khanna prior to his death. Therefore, the case of Sunita Khan is reasonable one and, therefore, entitled for appointment. Prima facie, the stand of the Bank shows application of different yardsticks while considering the claim of the petitioner for appointment on compassionate ground viz-a-viz case of Mrs.Sunita Khanna. The income of Rs.9713/- per month has been considered to be case of insufficient means whereas income of Rs.3,000/- has been considered a case of sufficient income. In view of the said fact, we are of the opinion that before proceeding further, it will be necessary to seek the comments of Mr.K.P. Malhotra, Regional Manager, who has passed the order Annexure P-7 and also to implead Mrs.Sunita Khan as the respondent so as to enable her to justify her appointment. Let notices be served upon Mrs. Sunita -14- Civil Writ Petition No.20118 of 2005. Khan through Regional Manager of the respondent-Bank for 31.01.2008. Before the said date, Mr. Malhotra shall also furnish his comments. However, we dispense with the presence of Mr.P.J.Kumar, Regional Manager of the respondent-Bank till further orders.” On January 30, 2008, neither the comments of Mr. K.P. Malhotra, Regional Manager, were filed nor Mrs. Sunita Khanna had been served. The case was then adjourned to February 20, 2008, permitting the counsel for the respondent- Bank to file the comments of Mr.K.P. Malhotra within one week and `Dasti' process for service upon Mrs.Sunita Khanna was given to counsel for the Bank. On February 20, 2008, counsel for the respondent-Bank stated that Mrs. Sunita Khanna had been served. However, none appeared on her behalf. In compliance of the order of this Court dated January 10, 2008, affidavit of Mr. K.P. Malhotra, who had passed the impugned order dated October 29, 2005 (Annexure P-7) has been filed which is on the same lines as is the affidavit of Mr. P.J. Kumar, Regional Manager, Central Bank of India, Regional Office, Rohtak, which has been discussed above. However, the affidavit of Mr. K.P. Malhotra contains certain contents, which require to be taken note of. The same are as under:- -15- Civil Writ Petition No.20118 of 2005. “ 4, xx xx xx. Another factor which deserves to be noticed in the case of Sh.Khanna is that the family consisted of only son and two daughters whereas the family of the petitioner consists of 3 sons and 1 daughter. The responsibility of marrying off 2 daughters with only one son supporting the widow is definitely a higher degree of responsibility in comparison with the case of the petitioner where the widow has a support of 3 sons and the responsibility of marrying only 1 daughter. “ These contents of the affidavit of Mr. K.P. Malhotra are wholly irrelevant to the context. It has come on record in the affidavit of petitioner Laxmi Devi dated August 27, 2001, which she had submitted along with her application dated August 27, 2001 (Annexure P-3) for compassionate appointment of petitioner No.2 that besides petitioner No.2, she had three children i.e daughter Punam (date of birth January 14, 1986), son Amit Singh (date of birth February 22, 1992) and son Anil Kumar (date of birth March 18, 1994). Her sons Amit Singh and Anil Kumar are still minors. It shows that the contents of the affidavit of Mr. -16- Civil Writ Petition No.20118 of 2005. K.P. Malhotra do not show any applicability of mind and, in fact, are ridiculous insofar as it is stated that “the responsibility of marrying off 2 daughters with only one son supporting the widow is definitely a higher degree of responsibility in comparison with the case of the petitioner where the widow has a support of 3 sons and the responsibility of marrying only 1 daughter” especially when three of the four children of petitioner No.1 were minors at the time of death of her husband. By referring to the case of Smt. Sudha Sharma v. Oriental Bank of Commerce, 2007 (2) SCT 445, it has also been sought to be projected by Mr.K.P. Malhotra in his affidavit that even a family with an income of Rs.3924.37 per month, after the death of the employee, cannot be said to be eligible for grant of compassionate appointment despite the fact that the last drawn salary of the deceased was Rs.7706.78 per month, being an income more than 60% of the last drawn salary of the deceased employee. We have perused the judgment rendered by this Court in Smt. Sudha Sharma's case (supra). In that case, husband of Smt. Sudha Sharma had died on May 01, 2005. On October 22, 2005, the petitioner therein was informed by the Bank that the Scheme for appointment on compassionate grounds had been superseded by a Scheme for payment of ex gratia amount in lieu of appointment on compassionate grounds with effect from March 04, 2005. She was advised that her claim for appointment on compassionate -17- Civil Writ Petition No.20118 of 2005. grounds would be considered under the revised Scheme. The petitioner was denied the benefit of ex gratia compensation as well as the appointment on compassionate grounds since the income of the family of the deceased husband was more than 60 % of the last pay drawn by the deceased. Suffice it to say, the facts in Smt. Sudha Sharma's case (supra) are not identical to the facts of the present case. In this case, the husband of petitioner No.1 had died on July 14, 2001 and the Scheme for payment of ex gratia amount in lieu of appointment on compassionate grounds had come into force with effect from March 04, 2005. Moreover, as observed above, different yardsticks were adopted while considering the claim of the petitioners for appointment on compassionate ground vis-a-vis case of Mrs.Sunita Khanna. The monthly income of Mrs.Sunita Khanna of about Rs.9,000/- per month, besides gratuity amount of Rs. 10 lacs has been considered to be a case of insufficient means whereas the monthly income of about Rs.3000/-per month besides gratuity amount of Rs.1.68 lacs in case of the petitioners has been considered to be a case of sufficient income. Another plea taken by the respondent-Bank in the written statement for declining compassionate appointment to petitioner No.2, which deserves to be deprecated, is that the case of compassionate appointment to R.P. Khanna's widow had arisen before the era of VRS and that it was only when the -18- Civil Writ Petition No.20118 of 2005. VRS was introduced that the Banks had realized the urgent need to shed the surplus staff. Admittedly, Mrs. Sunita Khanna had been appointed on compassionate ground in the year 2002 i.e almost at the same time when the claim of the petitioners for compassionate appointment was pending consideration. The written statement was filed on September 19, 2006. Thus, if the respondent-Bank did not take any action on the application of the petitioners for compassionate appointment of petitioner No.2 so long, it cannot now deny the same on the ground that the era of VRS has been introduced in the Bank. For the aforesaid reasons, this writ petition is allowed, the order dated October 29, 2005 (Annexure P-7) is set aside and the respondent-Bank is directed to give suitable appointment according to rules to petitioner No.2 forthwith on compassionate grounds. The petitioners are awarded costs of Rs.10,000/-. The respondent-Bank will be at liberty to recover the costs from its officers who were responsible for delaying the case of compassionate appointment of petitioner No.2. ( HEMANT GUPTA ) ( MOHINDER PAL ) JUDGE JUDGE March 03, 2008. ak