RSA No. 1579 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1579 of 2005 Decided on : 25-05-2009 Parveen Kumar Chopra ....Appellant VERSUS Union of India through Secretary Ministry of Finance, New Delhi and others ....Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr.Jagbir Malik, Advocate for the appellant MAHESH GROVER, J This is plaintiff's second appeal directed against the judgment of the learned Trial Court dated 29.9.2004 and that of the First Appellate Court dated 2.3.2005. The plaintiff has filed the instant suit with a prayer for mandatory injunction directing the defendants-respondents to accommodate him as Clerk-cum-Cashier in the defendant Bank on compassionate grounds as his father Harish Chander Chopra was working in the Bank had died in June, 1998. He sought compassionate appointment as a Clerk-cum-Cashier which was declined by the respondents on 12.12.2000. On notice, defendant-Bank admitted the death of their employee Harish Kumar Chopra on 9.6.98 and pleaded that immediate steps were taken by them for settlement of the terminal dues payable to the family and an amount of Rs. 2,64,319/- was paid qua gratuity, provident fund, PNB Benevolent Fund, Ex-gratia etc. The family pension was fixed at Rs. 3232/-+ Dearness allowance payable thereon from time to time was fixed RSA No. 1579 of 2005 2 and at that time, widow of the deceased was getting family pension of Rs.4638/- . Besides this, she was also getting a sum of Rs.500/- per month from Employees Welfare Association. It is pleaded that in this manner she was getting a total pension of Rs.5138/- per month and consequently it was held that the claim of the appellant for compassionate appointment could not be granted. Both the parties went to trial on the following issues:- 1. Whether the plaintiff is entitled for a decree of mandatory injunction directing the defendants to appoint him as clerk- cum-cashier on compassionate ground as taken in the plaint?OPP 2. Whether the suit of the plaintiff is not maintainable in the present form?OPD 3. Whether the suit of the plaintiff is beyond limitation?OPD 4. Whether plaintiff has no cause of action to file the present suit?OPD 5. Whether the plaintiff is estopped from filing the present suit by his own act and conduct?OPD 6. Whether the suit of the plaintiff is bad for mis-joinder of necessary parties?OPD 7. Relief. Both the Courts after taking into consideration the benefits granted to the appellant held that since the family had already been granted enough financial benefits which included retiral benefits of the deceased and consequently declined the prayer of the plaintiff-appellant and dismissed his suit. RSA No. 1579 of 2005 3 Aggrieved by the aforesaid findings, the plaintiff is in regular second appeal. It has been contended by the learned counsel for the appellant that the findings recorded by both the Courts below are erroneous and contrary to law as held in Balwan Singh Versus Union of India & another 1998(4) RSJ 691 (DB), Arun Kumar versus Union of India & others 2003(1) RSJ 736 (HP DB) and Balbir Kaur & another versus Steel Authority of India & others 2000 (3) RSJ 4 (SC) After hearing learned counsel for the appellant and on perusal of the impugned judgments, I am of the considered opinion that the contention raised by the appellant is erroneous and liable to be rejected. Hon'ble Supreme Court in case titled as Punjab National Bank and ors. Versus Ashwini Kumar Taneja reported as 2005(1) All India Service Law Journal 30 has settled the matter way back in the year 1994 and answered the controversy as under:- “5. In Smt. Sushma Gosain and ors v. Union of India and ors., (1989) 4 SCC 468 = 1990(1) SLJ 118 (SC) it was observed that in all claims of appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread-earner in the family. Such appointments should, therefore, be provided immediately to redeem the family in distress. The fact that the ward was a minor at the time of death of his father is no ground, unless the scheme itself envisage specifically otherwise, to state that as and when such minor RSA No. 1579 of 2005 4 becomes a major he can be appointed without any time consciousness or limit. The above view was reiterated in Phoolwati (Smt.) v. Union of India and ors., 1991 Supp. (2) SCC 689 and Union of India and ors v. Bhagwan Singh, 1995 (6)SCC 476 = 1996(1)SLJ 100 (SC). In Director of Education (Secondary) and Anr. v. Pushpendra Kumar and ors., 1998(5) SCC 192 = 1999(1) SLJ 32 (S C), it was observed that in matter of compassionate appointment there cannot be insistence for a particular post. Out of purely 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, provisions are made for giving appointment to one of the dependents of the deceased who may be eligible for appointment. Care has, however, to be taken that provision for ground of compassionate employment which is in the nature of an exception to the general provision does not unduly interfere with the right of those other persons who are eligible for appointment to seek appointment against the post which would have been available, but for the provision enabling appointment being made on compassionate grounds of the dependent of the deceased employee. As it is in the nature of exception to the general provisions it cannot substitute the provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision. 6. In State of U.P and others v. Paras Nath, 1998 (2) SCC 412, it was held that the purpose of providing employment to the RSA No. 1579 of 2005 5 dependent of a Government servant dying-in-harness in preference to anybody else is to mitigate hardship caused to the family of the deceased on account of his unexpected death while in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are rules providing for such appointments. None of those considerations can operate when the application is made after a long period of time. In that case also the delay was 17 years. 7. These aspects were highlighted in State of Manipur v. Md. Rajadin, 2003 (7) SCC 511, State of Haryana & Anr. v. Ankur Gupta, 2003(7) SCC 704 = 2004(1) SLJ 507 (SC), Haryana State Electricity Board v. Naresh Tanwar, 1996(8) SCC 23 and Haryana State Electricity Board v. Hakim Singh, 1997(8) SCC 85 = 1999(1) SLJ 114 (SC). 8. 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 had been held recently in The General Manager (D&P.R) &Ors. v. Kunti Tiwary & Anr., civil Appeal 126 of 2004 disposed of on 5.1.2004. It was categorically held that the amounts have to be taken into consideration. In the instant case, there was a scheme called 'Scheme for Employment of the Dependents of the Employee who die while in the service of the Bank RSA No. 1579 of 2005 6 service on Compassionate Grounds' (in short the 'scheme') operating in the appellant no.1-Bank which categorically provides as follows: “Financial condition of the Family The dependents of an employee dying in harness may be considered for compassionate appointment provided the family is without sufficient means of livelihood, specifically keeping in view the following: (a) Family pension; (b) Gratuity amount received; (c) Employee's/Employer's contribution to PF; (d) Any compensation paid by the Bank or its Welfare Fund; (e) Proceeds of LIC policy and other investments of the deceased employee; (f) Income for family from other sources; (g) Employment of other family members; (h) Size of the family and liabilities, if any, etc.” It is most respectfully submitted that the Board of Directors of the petitioner Bank had approved the above said scheme, which was based upon the guidelines circulated by Indian Bank Association to all the Public Sector Banks which in turn are based upon the law laid down by this Hon'ble Court in the case of Umesh Kumar Nagpal v. State of Haryana & Ors. reported as 1994(4) SCC 138. The scheme after approval was circulated vide PDCL 6/97 read with PDCL 11/99 dated 17.4.1999.” RSA No. 1579 of 2005 7 In view of the observations of the Hon'ble Supreme Court, the findings recorded by both the Courts below cannot be termed to be erroneous so as to warrant any interference in regular second appeal. The question of law that has been raised in the present appeal is “whether the retiral benefits of the deceased are to be taken into consideration while dealing with the compassionate appointment or not?” Since this question of law has been conclusively settled by Hon'ble Supreme Court in Punjab National Bank's case (supra), therefore, it is held that retiral benefits are to be taken into consideration while dealing with prayer for compassionate appointment and if the family is not facing any financial contingency, compassionate appointment cannot be granted as a matter of right. Consequently, the appeal being devoid of any merit is hereby dismissed. May 25 , 2009 (Mahesh Grover) rekha Judge