IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE THIRTY FIRST DAY OF OCTOBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE G.CHANDRAIAH WRIT PETITION NO : 4243 of 2004 Between: S.Govardhanagiri Yadav, S/o.Pakeeranna R/o.Chinnamalkapuram Village&Post, Done Mandal Kurnool, Kurnool District. ..... PETITIONER AND 1 The Branch Manager, State Bank of India, Bethamcherla Branch Kurnool District. 2 Asst.General Manager, State Bank of India, Region-V, Secunderabad. 3 Chief General Manager, State Bank of India, Koti, Hyderabad. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ, order or direction more particularly one in the nature of writ of Mandamus declaring the action of the 1st respondent in issuing proceedings F.No.26 dt.21.6.2003 in pursuance to the letter dt.13.06.2003 issued by the 2nd respondent, as highly illegal arbitrary and violative of Article 14 of Constitution of India and set aside the same and consequently direct the respondents to appoint the petitioner in any suitable post on compassionate grounds in the respondent Bank. Counsel for the Petitioner:MR.N.M.KRISHNAIAH Counsel for the Respondent No.: . The Court made the following : ORDER: This writ petition has been filed seeking Writ of Mandamus to declare the action of the 1st respondent, Branch Manager, State Bank of India, Bethamcherla Branch, in issuing proceedings F.No.26 dated 21-06-2003 in pursuance to the letter dated 13-06-2003 issued by the 2nd respondent, Assistant General Manager, State Bank of India, Region-V, Secunderabad, as illegal, arbitrary and violative of Article 14 of the Constitution of India and consequently direct the respondents to appoint the petitioner in any suitable post on compassionate grounds in the respondent bank. The averments made in writ affidavit are that the father of the petitioner was an Ex-serviceman and in the year 1985 he joined as Security Guard in the State Bank of India, Mahaboobnagar Branch. Subsequently, he was transferred to Bethamcharla Branch. While working at Bethamcharla, he died, due to lorry accident on 18-01-1993. Thereafter, the mother of the petitioner was given appointment as Messanger in Bethamchela Branch and she also died on 25-09-1998. At the time of death of the mother of the petitioner, he was 16 years old and he approached the 1st respondent in the month of April, 1999 and requested to appoint him on compassionate grounds in any suitable post but he was advised to approach the authorities after attaining the age of 18 years. Accordingly, the petitioner, after attaining the age of 18 years, approached the 1st respondent on 13-06-2001 and again requested him to provide him employment on compassionate grounds as he studied up to intermediate but the respondents, instead of providing employment, issued proceedings dated 21-06-2003 stating that the 2nd respondent had addressed a letter dated 13-06-2003 directing him to reject the case of the petitioner for appointment on compassionate grounds by citing a judgment reported in UMESH KUMAR NAGPAL v. STATE OF HARYANA AND OTHERS1. Therefore, the 1st respondent rejected the case of the petitioner for appointment vide proceedings dated 21-06-2003. After receiving proceedings dated 21-06-2003 the petitioner made a representation dated 10-11-2003 to the 2nd respondent stating his untold misery and necessity for compassionate appointment enclosing the certificate dated 01-11-2003 issued by the Village Secretary certifying that the petitioner has no means for running the family and a certificate dated 03-11-2003 issued by the Mandal Revenue Officer to the effect that the petitioner has no landed property in the name of his father or in his name. Eventually, the petitioner requested the respondents to consider his case for appointment and save him and his 13 years old disabled sister, who became mentally disordered, from starvation, as they have no means to maintain and even the pension was also not received. Aggrieved by proceedings dated 21-06-2003, rejecting the case of the petitioner for appointment on compassionate grounds, the present petition has been filed. On behalf of the respondents counter has been filed. While denying the averments of the petitioner, inter alia, stated that the scheme for offering compassionate appointment to dependants of deceased employee is for the purpose of enabling the family to tide over sudden crisis by the death of sole bread winner and to relieve the family from financial destitution. It is also submitted that the request of the petitioner for compassionate appointment was considered in the light of the objects of the scheme in force and after objectively considering the case of the petitioner, it was held that his case does not fit into the object of granting compassionate appointment. Hence, the claim of the petitioner for compassionate appointment was declined. It is specifically denied that the petitioner and his sister have no means to live and they are suffering from starvation. It is also submitted that the petitioner and his sister are getting family pension and they are owning a house worth Rs.50,000/- in which they are living and also possess 10 acres of agricultural land from which they derive an approximate annual income of Rs.10,000/-. Further, mere death of an employee does not entitle the family to claim compassionate appointment. The financial condition of the petitioner is not penurious and it is not true to state that the petitioner’s family is left with no source of income. The petitioner cannot seek appointment on compassionate grounds merely because he has completed intermediate and has not been able to fetch a job and he cannot claim compassionate appointment as a matter of right. Eventually, the respondents prayed to dismiss the petition. In response to the counter filed by the respondents, the petitioner filed a reply affidavit and claimed that the petitioner and his sister are getting two family pensions. It is stated that in fact, those pensions will be stopped after they attaining the age of majority. In support of his contention that he has no source of income and no landed property, he filed certificates issued by the Village Secretary and Mandal Revenue Officer. Heard the learned counsel for the petitioner and the learned standing counsel for the respondents and perused the material on record. Learned counsel for the petitioner submits that the respondent authorities have rejected the claim of the petitioner based on the judgment reported in the case of UMESH KUMAR (one supra) and without considering the merits of the case of the petitioner by examining the family position with reference to the income condition of the family of the petitioner. Therefore, it is non-application of mind. He also submits that the petitioner has not mentioned the element of having landed property of 10 acres in his application and it was manipulated one. He also submits that the certificate issued by the Mandal Revenue Officer certifying that the petitioner has no landed property and the certificate issued by the Village Secretary certifying that the petitioner has no financial source for leading his family, were not considered by the respondents. Relying on BALBIR KAUR AND ANOTHER v. STEEL AUTHORITY OF INDIA LTD AND OTHERS2 he submits that compassionate appointment cannot be negatived on the ground of introduction of scheme assuring regular monthly income to disabled employee or dependants of deceased employee. He also submits that receiving family benefit by the petitioner cannot be a ground for rejecting the case of the petitioner. Non-consideration of the aforesaid facts would amounts to non-application of mind. Therefore, he submits that the impugned proceedings dated 21-06-2003, rejecting the case of the petitioner, is liable to be set aside and required fresh adjudication. On the other hand, the learned standing counsel appearing for the respondents submits that after considering the facts and circumstances of the case of the petitioner, his case was rightly rejected by the authorities taking into consideration the case referred to one supra. The petitioner cannot claim job on compassionate grounds as a matter of right. Since the petitioner and his sister are receiving the family pension of their parents they can sustain their life without any difficulty and they have received family benefits i.e. provident fund, which can be considered as the income of the petitioner. Placing reliance in the cases of GENERAL MANAGER (D&PB) AND OTHERS v. KUNTI TIWARY AND ANOTHER3 and STATE BANK OF INDIA AND ANOTHER v. SOMVIR SINGH4 he submits that the terminal benefits received and other movable and immovable property possessed by the family of the deceased employee, shows that the financial condition, was not penurious. In the instant case the petitioner and his sister are receiving family pension and have received family benefits, therefore, it can be said that their financial condition is not penurious. Therefore, the petitioner is ineligible for appointment on compassionate ground. In view of the above facts and circumstances the respondents have rightly rejected the claim of the petitioner and the writ petition is liable to be dismissed. There is no dispute that the father of the petitioner was the employee of the respondents and after the death of his father his mother was given appointment. After her demise, the petitioner approached the respondents for appointment in any suitable post on compassionate grounds but his case was rejected vide proceedings dated 21-06-2003 taking note of the objects of compassionate appointment laid in judgment of the Apex Court referred to one supra. Now, it is pertinent to look the judgment referred to one supra, wherein it is categorically held that the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood, in such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. It is further held that mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. It is clear from the above that while appointing a person on compassionate ground the employer must take into consideration whether the family of the deceased is in penury and the source of livelihood of that family. In the instant case the respondents have followed the same and their main ground for rejecting the case of the petitioner is that the petitioner and his sister are receiving the family pension and they have received the terminal benefits of their parents. Therefore, their financial condition is not penurious and they have 10 acres of land and have got source of income. In this connection, the ground of the petitioner is that though they are receiving the family pension it will not be continued till their life time and it will be stopped. Further, the aspect of having 10 acres of land was categorically denied by the petitioner and submitted that he has no landed property and to that effect he filed certificates issued by the public authorities. Now the question falls for consideration is whether the petitioner’s fiscal condition is in penury and has he got any source of income and whether the respondents have properly appreciated the case of the petitioner? The learned counsel for the petitioner vehemently contended that the respondents have not properly appreciated the case of the petitioner and erroneously passed the impugned proceedings. He further submitted that the terminal benefits and family pension is not a regular income and the same cannot be taken as a regular monthly income. In support of his contention he placed reliance in the case of BALBIR KAUR (two Supra). The relevant para 13 reads as under: “Mr. Bhasme, learned Advocate appearing for the Steel Authority contended that the Family Benefit Scheme was introduced on 21st November, 1992 and the salient features of the Scheme were to the effect that the family being unable to obtain regular salary from the management, could avail of the scheme by depositing the lump sum provident fund and gratuity amount with the company in lieu of which the management would make monthly payment equivalent to the basic pay together with dearness allowance last drawn, which payment would continue till the normal date of superannuation of the employee in question. Mr. Bhasme further contended that adaption of this Family Benefit Scheme was meant to provide an assured or regular income per month, while the bulk amount deposited by way of provident fund and gratuity with the management remained intact. Mr. Bhasme, contended that consequently on deposits as above, with the management, the employee’s family could avail of pay up to normal date of superannuation on the footing that the employee though not actually working but notionally continued to work till the normal date of superannuation and such a scheme in fact stands at a much better footing and much more beneficial to an employee or a deceased employee. Apparently these considerations weighed with the High Court and the latter thus proceeded on the basis that by reason of adaption of a Family Benefit Scheme by the Employees’ Union, question of any departure therefrom or any compassionate appointment does not and cannot arise. But in our view this Family Benefit Scheme cannot be in any way equated with the benefit of compassionate appointments. The sudden jerk in the family by reason of the death of the bread earner can only be absorbed by some lumps sum amount being made available to the family – This is rather unfortunate but this is a reality. The feeling of security drops to zero on the death of the bread earner and insecurity thereafter reigns and it is at that juncture if some lump sum amount is made available with a compassionate appointment, the grief sticken family may find some solace to the mental agony and manage its affairs in the normal course of events. It is not that monetary benefit would be the replacement of the bread earner, but that would undoubtedly bring some solace to the situation.” The aforementioned case was filed when the respondent therein introduced a Family Benefit Scheme to deposit lump sum provident fund and gratuity amount with the employer. The learned counsel would take the object from the above and contend that though the petitioner herein received the terminal benefits and family pension, the same cannot be equated with the compassionate appointment. The Apex Court categorically held that sudden jerk in the family by reason of the death of the bread earner can only be absorbed by some lump sum amount being made available to the family. His contention is that such lump sum payment is not substitute for compassionate appointment. Learned standing counsel for the respondents placed reliance in the cases of KUNTI TIWARY AND SOMVIR SINGH (3 & 4 supra). The Apex Court in the case of 4 supra at paras 12 and 13 held as under: “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 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 the High Court cannot dilute the criterion of penury to one of “not very well-to-do”. The view 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.” Relying on above concepts, he contend that the respondent Bank must take into consideration all the objects of the existing scheme and while considering the case of the petitioner also, the bank followed the same and has taken a decision that the case of the petitioner does not fit into the objects of the scheme since the petitioner is receiving the family pension and also received the terminal benefits of his parents. Here the specific contention of the petitioner is that his family pension was stopped as he attained the age of majority and he has no means to live and to that effect he strongly placed reliance on the certificates issued by the authorities. The ground of the respondents that the petitioner has 10 acres of the land has not been proved by adducing any evidence. Further, the contention of the petitioner is that the respondents have not considered the certificates produced by him to the effect that he has no means to live. In this connection, it is pertinent to note as per the judgment of the Apex Court one supra that the Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. From a perusal of the impugned order dated 21-06-2003 it is obvious that though the respondents have categorically mentioned the said object, but it is not know that on what basis the respondents have come to a conclusion that the petitioner has a source of income, in spite of the petitioner producing certificates issued by the public authorities, such as, Village Secretary and the Mandal Revenue Officer that he has no means to live. Except citing some of the objects from the judgment of the Apex Court one supra, no independent reasons have been assigned to reject the case of the petitioner, considering the certificates issued by the public authorities. The impugned order does not reflect any of the contentions stated by the petitioner except stating about the financial aspect of the petitioner, which was specifically denied by him. Under these circumstances, I am of the opinion that the impugned order does not contain any valid reason with reference to the financial condition of the petitioner as to whether the petitioner can sustain without providing employment on compassionate grounds, as there is no denial of the various certificates issued by the public authorities to the effect that the petitioner does not possess any landed property and livelihood. Having regard to the facts and circumstances of the case and the submissions made by the learned counsel on either side and for the above reasons, the impugned order is liable to be set aside. Accordingly, the order dated 21-06-2003 issued by the 1st respondent, Branch Manager, Bethamcherla, is set aside and the matter is remitted to the respondents for fresh adjudication. The petitioner is given liberty to make appropriate representation, enclosing all the documents which have been relied on by him for claiming the compassionate appointment, within a period of two weeks from the date of receipt of a copy of this order. On making such representation by the petitioner, the respondents are directed to pass appropriate orders, in accordance with law, within a period of four weeks from the date of receipt of such representation from the petitioner. In the result, the Writ Petition is disposed of. There shall be no order as to costs. _________________________ JUSTICE G. CHANDRAIAH Date: 31-10-2008 LSK 1 1994 (4) SCC 138 2 AIR 2000 SUPREME COURT 1596 3 2004 SUPREME COURT CASES (L&S) 943 4 (2007) 4 Supreme Court Cases 778