IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.620 of 2010 Uttar Bihar Gramin Bank through its General Manager, Head Office- Kalambagh Chowk, P.S. - Kazi Mohammadpur, District- Muzaffarpur. …..Respondent….Appellant. Versus Ravi Bhushan, son of Late Kamlesh Kumar Thakur, resident of Village & P.O.- Ghosharam, P.S.- Piar, District- Muzaffarpur. …..Petitioner…Respondent. ----------- For the Appellant: Mr. Prabhakar Jha, Advocate For the Respondent: Mr. Yugal Kishore, Sr. Advocate with Mr. Sanjay Kumar and Mr. Nutan Sahay, Advocates. ******** 06- 25.03.2011 Heard learned counsel for the appellant as well as the respondent. Uttar Bihar Gramin Bank (hereinafter referred to as ‘the Bank’) has filed this appeal under Clause 10 of the Letters Patent of the High Court of Judicature at Patna against the order dated 11.1.2010, passed by a learned Single Judge of this Court in C.W.J.C. No.17532 of 2009, whereby the appellant was directed to consider the case for compassionate appointment of the respondent (writ petitioner), in the light of his application dated 15.12.2002, contained in Annexure-1 to the writ petition. 2. The facts of the case in short are as follows. One Kamlesh Kumar Thakur, father of the respondent (writ petitioner) died in harness on 15.11.2002, while serving as 2 Peon in Vaishali Kshetriya Gramin Bank, which has subsequently merged with Uttar Bihar Kshetriya Gramin Bank. The respondent within a month applied for appointment on compassionate ground vide his application dated 15.12.2002. The application of the respondent remained unattended all these years, which led to filing of C.W.J.C. No.17532 of 2009 in this Court. 3. In the writ application, the petitioner (who is respondent in this appeal) prayed for a direction to the Bank to consider his application for appointment on compassionate ground, which has remained pending since 15.12.2002. The Bank opposed the prayer and submitted that all pending applications for appointment on compassionate ground are to be considered as per the new scheme, as contained in letter no.1549, dated 19.07.2007, in the light of instructions of Ministry of Finance, Department of Economic Affairs (Banking Division), contained in letter dated 21.08.2008. The new scheme, which has replaced the old scheme, provides only for payment of ex-gratia amount in lieu of appointment on compassionate ground. The new scheme would also apply to all pending applications, though those may have been filed prior to 19.07.2007. The learned Single Judge observed that 3 the application of the writ petitioner should have been considered on the basis of scheme prevailing at the time of death and not as per the new scheme, which has come in the year 2007/2008. The learned Single Judge opined that the circular issued on 19.07.2007, would not govern the case of the petitioner, as it did not have retrospective force and directed the Bank to consider the case of the writ petitioner for compassionate appointment in the light of the circular which held the field at the time of death of his father in the year 2002. 4. Aggrieved by the impugned order dated 11.01.2010, passed in C.W.J.C. No. 17532 of 2009, by the learned Single Judge, the Bank has preferred the instant appeal. The Bank again took the same stand as before the learned Single Judge. Counsel for the Bank states that the earlier scheme provided for compassionate appointment, but considering the financial crunch of the Bank and also the instructions of the Ministry of Finance, Department of Economic Affairs (Banking Division), it has decided to pay ex-gratia amount to the deceased family in lieu of appointment on compassionate ground. The scheme also envisaged that even all pending applications of 4 compassionate appointment would come within its purview. He further submits that the plea of the respondent (writ petitioner) for compassionate appointment is not maintainable as the new scheme does not provide for it. The appellant Bank has also placed reliance on the decision in case of State Bank of India & Anr. Vs. Raj Kumar, reported in 2010(2) B.B.C.J. Part-IV 353 (SC), to stress the point that the new scheme would apply to pending applications. 5. Counsel for the respondent has appeared and filed counter affidavit. He submits that on 19.11.2002, the Bank resolved not to make any appointment for a period of five years. The applicability of the aforesaid circular was also an issue in C.W.J.C. No.1931 of 2004 (Mamta Verma Vs. Vaishali Keshetriya Gramin Bank & Ors.). The husband of Mamta Verma, namely, Bimal Kumar, also an employee of Vaishali Keshetriya Gramin Bank, died in harness in 2002, like the father of the respondent. On 23.04.2002, Mamta Verma made an application for appointment on compassionate ground. The respondent Bank refused to consider the application on the ground that it has taken a policy decision –cum- resolution on 19.11.2002, not to make any appointment for a period of five years. Placing reliance 5 upon a decision passed in L.P.A. No.1116 of 2001 (The Board of Directors & ors. Vs. Most. Shail Devi & ors.), on 01.12.2003, the learned Single Judge observed that the subsequent ban on the ground of financial crunch would not be a ground to reject the claim of the daughter of the deceased employee, as the cause of action had arisen prior to formulation of the policy decision. He submits that the Bank preferred appeal bearing L.P.A. No. 626 of 2004, wherein counsel appearing for the Bank stated that resolution dated 19.11.2002 has been withdrawn and now the Bank would consider all pending applications of compassionate appointment. L.P.A. No.626 of 2004 was disposed of in terms of submission of Bank, vide order dated 23.03.2006, as contained in Annexure-C to the counter affidavit. 6. Learned counsel for the respondent submits that Mamta Verma was subsequently appointed in 2009, much after coming into force of the new scheme in 2007/2008. He further submits that his case would be similar to Mamta Verma, as both his father and husband of Mamta Verma died in harness while serving in Vaishali Keshetriya Gramin Bank in 2002. 6 7. We have heard the learned counsel for the parties and considered the materials on record. We find that the appellant Bank is not very consistent in its stand as to from which date the new scheme providing for an ex-gratia amount came into force replacing the earlier scheme, which provided for compassionate appointment. In paragraph 5 of the appeal, it has been stated that the Government letter for payment of ex-gratia amount came into force on 1st September, 2008 and in the same paragraph it has been stated that no one can be granted compassionate appointment after 31.07.2009. On the other hand, in sub-paragraph (iii) of paragraph 2 of this appeal, it has been stated that now all the pending applications for compassionate appointment are to be considered in the light of the instructions as contained in letter no.1549 dated 19.07.2007. We for the present would proceed on the premise that the new scheme replacing the old scheme of compassionate appointment came into force on 19.07.2007. 8. It is well settled that the heirs of the deceased employee who died in harness, cannot claim appointment on compassionate ground as a matter of right. The dependant only gets a concession to be considered for appointment on 7 compassionate ground, if a rule or a circular or scheme so provides for it. In absence of any rule, circular or scheme for compassionate appointment, the dependant would not have any vested right even for consideration of appointment on compassionate ground. Furthermore, where the new scheme stipulates that it would govern pending applications then such cases also has to be considered within the parameter of new scheme. 9. In the case of State Bank of India vs. Raj Kumar (supra), relied upon by the learned counsel for the Bank, the Apex Court was seized with the issue whether the new scheme, which provides for payment of ex-gratia lump sum amount in place of compassionate appointment, would apply to pending applications. The State Bank of India had brought a new scheme on 04.08.2005, replacing the earlier scheme, which provided for compassionate appointment. The scheme stated that all pending applications for compassionate appointment would be governed by its provisions. The factual aspect of the case in short was that the respondent’s mother had made application on 06.06.2005 and 14.06.2005, requesting for appointment of her son Raj Kumar on compassionate ground, as his father had died in harness on 8 01.10.2004. While the application was being processed, a new scheme which provided only for payment of ex-gratia lump sum amount, came into effect from 04.08.2005. The new scheme replaced the earlier scheme which provided for compassionate appointment. The case of respondent therein was that as the father of the claimant Raj Kumar had died on 01.10.2004, and application for compassionate appointment was made in June 2005, much before coming into force of new scheme on 04.08.2005, the old scheme and not the new scheme, which came after death of employee, would be relevant. The respondent submits that new scheme cannot be given retrospective effect and thus would not apply to pending applications, even if it is so stipulated. 10. Rejecting the contention of the respondent, the Hon’ble Apex Court observed that applicant has no vested right to appointment save and except those provided under the scheme or rule; and even pending application for compassionate appointment is to be considered on the basis of the circular governing the field on the date of consideration. In the aforesaid case, the applications for compassionate appointment were filed on 6.6.2005 and 17.6.2005. While the applications were being processed, the 9 new scheme came on 4.8.2005, within two months from the date of application. Thus the Hon’ble Apex Court held that if within the processing of application of compassionate appointment, a new scheme is introduced the same would be apply to pending applications and not the previous scheme. 11. In matter of compassionate appointment, the new scheme holding the field on the date of consideration of application would govern the pending cases, more so when the scheme states that it would cover the pending application. But where there is an inexplicable delay in not considering the application for long six years and the delay is entirely attributable to the respondent employer, the latter may not be allowed to take advantage of its own laches. In other words, where the employer has not considered the request for compassionate appointment for a period of six years and with passage of time a new scheme has been enforced. The same would not inure to the advantage of the respondents unless sufficient cause is provided as to why the applications have not been considered for six years. A Government or an employer cannot take advantage of its own default and in this respect one can gainfully rely upon observations made by Chief Justice Chagla in the case of All India Groundnut 10 Syndicate Limited Vs. Commissioner of Income Tax, Bombay City, reported in AIR 1954 Bombay 232, which is being reproduced herein below: ―But the most surprising contention is put forward by the Department that because their own officer failed to discharge his statutory duty, the assessee is deprived of his right which the law has given to him under sub-section (2) of S. 24. In other words, the Department wants to benefit from and wants to take advantage of its own default. It is an elementary principle of law that no person – we take it that the income- tax Department is included in that definition— can put forward his own default in defence to a right asserted by the other party. A person cannot say that the party claiming the right is deprived of that right because ―I have committed a default and the right is lost because of that default.‖ 12. We can understand a case where there is a procedural delay for want of some informations or even where there is reasonable delay in processing the applications. In such situation, the claimant cannot justifiably plead for consideration of his case in terms of more advantageous previous circular. However, where there is undue and inexplicable delay in disposing of application for no fault of applicant, or where the application has not been attended for long years, the employer cannot be allowed to take advantage of the new scheme for default of its own. It was open to the employer either to reject or accept the application, depending 11 upon respective merit. In the instant case, the application for compassionate appointment was submitted on 15.12.2002, within one month of the death of the employee, who died in harness on 15.11.2002. The new scheme came into effect in July 2007 or August 2008. However, no justifiable reason has been shown for non-consideration of the application. Once the petitioner knew that employment in Bank is not possible, he could have looked for alternative elsewhere, before all avenues become bleak. Furthermore, the respondent Bank has considered the application for compassionate appointment of one Mamta Verma whose husband too died while working in the same Bank, and appointed her in 2009, though the new scheme came in 2007. The respondent Bank cannot adopt pick and choose method. The action of the respondents in not considering the application of the petitioner would be arbitrary and violative of Articles 14 and 16 of the Constitution in the facts and circumstances of the case. 13. In that view of the matter, we agree with the operative portion of the order of the learned Single Judge whereby the Bank was directed to consider the request of the writ petitioner for compassionate appointment for reasons different than the one given by the learned Single Judge. We 12 have reservations with respect to some of the sweeping observations made by the learned Single Judge. The same would await an appropriate case for consideration. Suffice it to say that the employer cannot be allowed to take advantage of its own default. 14. In the result, we affirm the operative portion of the order of the learned Single Judge directing the Bank to consider the request of the writ petitioner for compassionate appointment pending since 2002, in the light of old scheme prevailing at the relevant time. This appeal is accordingly dismissed. There will be no order as to costs. (S. K. Katriar, J.) (S. P. Singh, J.) S.K.Pathak/Uday