IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.6623 of 2008 1. Rama Devi, wife of late Baleshwar Paswan 2. Santosh Paswan, son of late Baleshwar Paswan Both residents of village Chainpur Baghail, P.O. Sahdei Bujurg, P.S. Desari, District Vaishali … Petitioners Versus 1. State Bank Of India, Local Head Office, Post Box No. 103, Patna- 800001, through its Chief General Manager 2. The Chief General Manager, State Bank of India, Local Head Office, Post Box No. 103, Patna- 800001 3. The General Manager (D & P B), State Bank of India, Local Head Office, Post Box No. 103, Patna- 800001 4. The Deputy General Manager, State Bank of India, Zonal Office, at & P.O. & P.S. Muzaffarpur, District Muzaffarpur 5. The Regional Manager, State Bank of India, Regional- II, Regional Office, Club Road, at & P.O. & P.S. Muzaffarpur, District Muzaffarpur 6. The Branch Manager, State Bank of India, Desari Branch, at & P.O. & P.S. Desari, District Vaishali … Respondents ---------------------------------- For the Petitioner : Mr. Ritesh Kumar, Advocate For the State Bank of India : Mr. Chittaranjan Sinha, Sr. Advocate ----------------------------------- PRESENT HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (12.09.2011) Mihir Kumar Jha, J. Heard Mr. Ritesh Kumar, learned counsel for the petitioners and Mr. Chittaranjan Sinha, learned Senior counsel for the State Bank of India. This case in fact relating to consideration of the case of the petitioners for appointment on compassionate ground was heard on 27.4.2011 and a reasoned interim order was passed noticing various aspects which reads as follows: “Heard Mr. Ritesh Kumar, learned counsel for the petitioner and Mr. Mukund Jee, learned counsel appearing on behalf of the State Bank of India and its officials. In this writ application a prayer has been made for quashing of the order dated 6.9.2006, as contained in Annexure 6, whereby and whereunder the claim of the petitioner for appointment on compassionate ground has been rejected by the competent authority of the State Bank of India on the ground that the scheme of payment of ex-gratia lump sum amount in lieu of appointment on compassionate ground has come into force with effect from 4th August, 2005 and therefore, appointment of the petitioner on compassionate ground was impressible. 2 Counsel for the petitioner would however submit that subsequently the Government of India having considered the grievance from all concerned corners and the employees Union of various Banks had issued an order on 19th July, 2007 advising all the Chief Executives of Public Sector Banks to make amendment in the policy in force with effect from 4.8.2005 banning compassionate appointment on any ground. In this context it has been explained that in the light of aforementioned letter of the Government of India dated 19.7.2007 there would be two exceptions to ongoing policy of payment of ex-gratia amount in lieu of compassionate appointment could still be made on compassionate ground where:- as employee of the bank dying in harness had not completed five years service, or as such death of the employee had taken place as a result of violence, terrorism robbery or dacoity. Counsel further points out that the Government of India has in its letter dated 19.7.2007 had advised all the Public Sector Banks to revise its policy for the aforementioned purposes for making appointment on compassionate ground with effect from 31.7.2004 and it has been clarified that all applications pending as on 31.7.2004 shall be considered in accordance with revised scheme. Mr. Ritesh Kumar, therefore, would contend that since the death of deceased employee is 12.4.2005 and the application of the petitioner filed thereafter was pending on which the impugned order came to be passed in the year 2006, the petitioner could also get the benefit of revised policy as per Government of India letter dated 19.7.2007, if the same was implemented by the State Bank of India. Mr. Mukund Jee, learned counsel appearing on behalf of State Bank of India, on the other hand, does not dispute the content of the aforementioned letter of the Government of India dated 19.7.2007 but he would submit that since the State Bank of India has not adopted it as yet and in fact having noticed the said change in policy suggested by the Govt. of India has solicited opinion of a Senior Advocate of the Supreme Court in the year 2008, this Court should not issue a direction for considering the case of the petitioner in the light of the revised policy as per Government of India letter dated 19.7.2007. He has further submitted that in absence of adoption of the revised policy as suggested by the Government of India in its letter dated 19.7.2007, the same being still not the policy of the Bank can have at best only a persuasive value. In the considered opinion of this Court seeking opinion by the Bank from its counsel is an internal matter and cannot be made a ground by it for an indefinite period for forestalling the Govt. of India policy given to all the Banks for revising its policy for compassionate appointment. The other defence that the State Bank of India is yet to adopt the suggested change by the Government of India has to be considered in the backdrop of the fact that a similar defence taken by the State Bank of India in the case of Parwati Kumari vs. State Bank of Bikaner and Jaipur was not accepted by this Court as would appear from an order dated 4.8.2010 in 3 C.W.J.C.No. 11762/2010, wherein this Court in operative portion had held as follows: “8. As the State Bank of India has not yet considered the request of the Government of India contained in letter dated 19.6.2007 duly incorporated in the letter of Indian Banks Association dated 19.7.2007, I direct the Managing Director of the State Bank of India to place the request of the Govt. of India contained in letter dated 19.6.2007 along with the request of theIndian Banks Association contained in letter dated 19.7.2007, Annexure 8 of C.W.J.C.No. 11762 of 2010 and Annexure 9 of C.W.J.C.No. 11850 of 2010 before its Board of Directors and to consider the request made therein as early as possible, in any case within three months from the date of receipt/ production of a copy of this order before the Managing Director, State Bank of India.” It thus becomes clear that the State Bank of India was directed by this Court to take a firm stand as with regard to letter of Govt. of India dated 19.7.2007 within a specified time limit of three months. Mr. Mukund Jee would however submit that no such decision as yet has been taken though he expects that such a decision may be taken within a period of 15 days. From the aforementioned discussion it becomes clear that the Government of India’s advice in its letter dated 19.7.2007 for amending policy of compassionate appointment to all the Banks including S.B.I. had been issued in the month of July, 2007 and if the authorities of S.B.I. have not been able to take a final decision in a period of almost four years despite there being a time limit fixed by this Court in the directions contained in the order of this Court dated 4.8.2010, something is definitely wrong in the functioning of the State Bank of India. The State Bank of India cannot altogether ignore the instruction of the Government of India whether it be even in form of advice inasmuch as it is required to take a final decision either in affirmative or in negative. The S.B.I. may convey to the Government of India that its advice rendered in letter dated 19.7.2007 was not acceptable which would at least ensure that whatever has been adopted by the other Banks including Canara Bank and Central Bank of India was in fact to be acted in isolation as per wish and desire of other respective nationalized Bank and the S.B.I. The Big Brother attitude of the State Bank of India however giving a cool ignorance to the advice of the Government of India can be allowed to continue in form of this hara-kiri created by the authorities of the State Bank of India, by keeping the matter pending for more than two years in the name of seeking legal opinion from a Senior Advocate of the Supreme Court and in process also avoiding the order of this Court dated 4.8.2010 beyond the prescribed period of three months. The non-compliance of the order of this Court dated 4.8.2010 is thus writ large on the face of record and therefore, if no decision of the Board of Director of the State Bank of India is produced as with regard to considering the advice of the 4 Govt. of India scheme dated 19.7.2007 within a period of 15 days from today, this Court would be compelled to seek personal appearance of the Managing Director of the State Bank of India to whom such direction was issued by this Court on 4.8.2010 for explaining his deliberate disobedience. List this case on 13th of May, 2011 at the top of the list as a tied up matter for filing of supplementary counter affidavit as prayed for by the learned Counsel for the State Bank of India. Let a copy of this order be given to Mr. Mukund Jee, learned counsel appearing for the State Bank of India for its strict compliance.” Subsequently the Bank had taken a plea that the matter was under consideration and ultimately on 21.6.2011 counsel for the Bank had placed on record the revised scheme dated 13.5.2011. Mr. Sinha placing reliance on Clause 21 of the Bank’s revised policy, contained in the circular dated 13.5.2011, had submitted that since the bread earner employee of the bank had died on 12.4.2005 and the cut off date under Clause 21 was 4.8.2005, the petitioners would not be entitled for being considered for appointment on compassionate ground. This aspect of the matter was again dealt by this Court in the order dated 21.6.2011 which reads as follows: “Heard Mr. Ritesh Kumar, learned counsel for the petitioners and Mr. Chitaranjan Sinha, learned senior counsel for the State Bank of India. Pursuant to the order of this Court dated 27.4.2011, Mr. Sinha has placed on record the revised “SBI Scheme for appointment on compassionate ground in exceptional cases” dated 13th of May, 2011. Mr. Sinha is also of the opinion that in view of Clause-21 of the said Scheme, the petitioner will not be entitled for appointment on compassionate ground only because he or his family has already accepted the ex-gratia amount. Mr. Ritesh Kumar, in reply, would submit that Clause-21 of the Scheme is wholly arbitrary and he intends to assail the same by filing an interlocutory application. Let the petitioner file his amendment application assailing the aforesaid Scheme within a period of two weeks, whereafter, a rejoinder will be filed by the Bank within a period of next four weeks. The Bank in its rejoinder affidavit must make it clear as to how a dependent of a person who had his met his death while performing official duty would stand deprived from being considered for appointment on compassionate ground when his application for appointment on compassionate ground was filed well within the time prescribed under the earlier Scheme and was rejected only on account of enforcement of a new Scheme replacing the concept of compassionate appointment by providing one time lump sum payment of ex- gratia amount. Thus, the Bank would be really called upon to justify Clause-21 of its policy dated 13.5.2011 which necessarily creates a class in a Class with regard to such of the persons who otherwise were/are eligible for appointment on special ground even under the new Scheme but have shown the door on account of payment of ex-gratia amount made due to 5 enforcement of the earlier Scheme. The Bank has also to keep in mind the ratio of the judgment of the Apex Court in the case of State Bank of India and another Vs. Rajkumar reported in 2010(2) BBCJ 353(S.C.) wherein it was held that any pending case for appointment on compassionate ground can decided on the basis of enforcement of a new Scheme which will be govern all such cases and, therefore, if such an application of the petitioner for appointment on compassionate ground was rejected due to enforcement of a new Scheme whereafter the petitioner had to accept the ex-gratia amount, how can he be now even deprived of reconsideration of his case under the new Scheme specially when cases of others are fit for reconsideration under the same clause 21 of the new Scheme dated 13.5.2011. Thus all these aspects should be answered by the Bank in a very categorical manner so that on the next date of hearing, this Court can decide the correctness or otherwise of Clause-21 of the said Scheme dated 13.5.2011. In the interlocutory application that would be filed by the petitioners for assailing the new Scheme including its Clause 21 it also must be made clear as to when they or their family members had received the amount of ex-gratia of Rs. 3,49,400/- and whether such payment was made to the petitioners and/or their family members before or after filing of the writ application. List this case after eight weeks at the top of the list.” The petitioners in fact have filed I.A.No. 4365/2011 challenging Clause 21 of the revised policy in the Bank’s circular dated 13.5.2011 and the said prayer by way of amendment in the prayer portion of the writ application being only consequential is allowed. I.A.No. 4365/2011 shall be treated to be part of the main writ application. Today counsel for the parties agree that the petitioners were never paid any amount of ex-gratia and in fact amount of Rs. 3,49,400/- was by way of compensation under the Bank’s policy which is paid in case of any employee of the Bank dying in harness. This Court would, therefore, clarify that the petitioners have not received any amount of ex-gratia so as to disentitle themselves by way of estoppel in consideration of their cases for appointment on compassionate ground. The only remaining aspect on which Mr. Sinha was quite emphatic was that since the date of death of the bread earner, the employee of the Bank, was prior to 4.8.2005, no appointment on compassionate ground can be made in view of the restrictions imposed under Clause 21 of the revised circular. In order to appreciate this submission it would be necessary to quote Clause 21 of the revised circular which reads as follows: 6 “21. Date of effect of the scheme and disposal of pending applications: i. The Scheme will come into force with effect from 4.8.2005 the date on which the scheme of payment of ex-gratia lumpsum amount replaced the earlier scheme of compassionate appointment scheme. ii. All applications for appointment on compassionate grounds in the categories as mentioned in paragraph 5 above, will be considered for death occurring on or after 4th August, 2005, under this scheme. The cases related to death prior to 4th August, 2005, will not be considered. iii. Case where the dependents/ family have been paid ex-gratia lumpsum amount will not be considered under the scheme. iv. However, out of ii) above, the cases which have been declined during the period from 4th August, 2005 to adoption of this scheme, will be reconsidered as per new scheme. v. The cases where the payment of ex-gratia was declined on account of penury norms are eligible for consideration for compassionate appointment in death cases under para 5.” Mr. Ritesh Kumar in fact has assailed Clause 21 for the solitary reason that if there was already a policy in vogue prior to 4.8.2005 envisaging consideration of cases of the dependent of the deceased employee of the Bank dying in harness for appointment on compassionate ground which was substituted by altogether abolishing the scheme on 4.8.2005, if for any reason the said policy was again revised envisaging consideration of cases for compassionate appointment in certain exceptional cases, the person concerned, as in the present case the petitioners, will have a right to show that they too come under the exception and their cases cannot be altogether ignored and/or removed from the zone of consideration on the ground that the date of death of bread earning employee was prior to 4.8.2005. To that extent he would question the rationale of the cut off date of death of the employee on 4.8.2005. This aspect of the matter, however, has been seriously contested and opposed by Mr. Sinha, who would submit that whenever a policy would come there has to be a cut off date and in the present case when the Bank had abolished the scheme of compassionate appointment with effect from 4.8.2005, reintroduction of such policy again on 4.8.2005 for certain exceptional cases in view of the Bank Policy dated 13.5.2011, by itself justifies the cut off date of 4.8.2005. 7 In the considered opinion of this Court the cut off date of 4.8.2005 as the date of death of the employee would not be relevant, inasmuch as every employee of the Bank before 4.8.2005 dying in harness was entitled for consideration of his dependent for appointment on compassionate ground. Thus, either the pending cases or the decided cases as on 4.8.2005 could be reopened in view of revision of the policy of the Bank in the circular dated 13.5.2011. It is not the case of the Bank that the earlier cases which were wrongly decided could not have led to rejection on the ground of change of policy and in fact it was this aspect of the matter which was decided by the Apex Court by holding that even a changed policy would be applicable in a pending case. Now if a case of an employee whose consideration was pending as on 4.8.2005 will become entitled for reconsideration in view of the Bank circular dated 13.5.2011 it would really be impermissible in law to draw a cut off date for such employee whose cases were wrongly decided prior to 4.8.2005. Essentially the date of death, therefore, in a case of employee of the Bank when one could have filed application within the period of limitation will have no relevance if he qualifies under the revised policy. Moreover it is clear that Clause 21 itself takes care of such exceptional cases by making a provision to the following extent: “ii. All applications for appointment on compassionate grounds in the categories as mentioned in paragraph 5 above, will be considered for death occurring on or after 4th August, 2005, under this scheme. The cases related to death prior to 4th August, 2005, will not be considered. … … … iv. However, out of ii) above, the cases which have been declined during the period from 4th August, 2005 to adoption of this scheme, will be reconsidered as per new scheme.” Thus, if the two provisions 21(ii) and 21(iv) are read together it would become clear that every person whose cases were either considered and rejected or whose application was pending on 4.8.2005 will be entitled for reconsideration for compassionate appointment under the revised policy dated 13.5.2011. Read in this manner, there would be no reason for this Court to hold the cut off date of 4.8.2005 to be irrational or arbitrary. It has to be taken consideration that in each and every case where 8 the compassionate appointment has been refused after 4.8.2005 the Bank will be only required to see whether such a decision would require a reconsideration in view of the two specific conditions sought to be enforced by the Bank’s revised policy dated 13.5.2011, namely, the death being either on account of any terrorist activity or in the interest of the Bank and the death taking place while the employee was aged less than 30 years. These two exceptions were carved out for considering the case on compassionate ground and will therefore have to be equally applied whether the date of death of the employee was 4.8.2005 and/or even after 4.8.2005, inasmuch as Clause 21(iv) quoted above would leave nothing for speculation that the Bank really intended to consider all such cases. Considering all these aspects of the matter, while this Court would uphold by reading down the provision of Clause 21(iv) in the manner indicated above, it would also uphold the rest of the Bank’s revised policy dated 13.5.2011 to be valid and equitable to all the employees of the Bank. In the result, this writ application is allowed and the respondents are directed to consider the case for their appointment on compassionate ground in the light of Clause 21(iv) of the revised circular dated 13.5.2011. Such exercise on an application filed by the petitioner must be completed and its result be communicated to the petitioner within a period of four months from the date of filing of an application by the petitioners. Let it be made clear that this Court has not gone into the merits of claim of the petitioners as with regard to either applicability of the Bank revised circular or their claim for appointment on compassionate ground and has only directed the Bank to consider the case of the petitioners strictly in accordance with the revised policy of the Bank contained in the circular dated 13.5.2011. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha,J.) Patna High Court Dated the 12th September 2011 A.F.R./Surendra