1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B. CIVIL WRIT PETITION NO.2757/2005 (Mohd. Faruk Bhati Vs. S.B.B.J. & Ors.) Date of order : October 13rd, 2008 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. S.N. Trivedi, for the petitioner. Mr. P.K. Lohra, for the respondents. REPORTABLE : By way of filing the present writ petition, the petitioner has prayed for quashing the order dated 5.3.2004 (Annexure-4) and prayed that a direction may be issued to the respondents to provide appointment to the petitioner on compassionate ground from the date when the dependents of other deceased employees of the respondent Bank were provided appointment. Brief facts of the case are that the father of the petitioner late Abdul Aziz Bhati was working as clerk-cum-cashier in State Bank of Bikaner & Jaipur. He expired on 1.5.2003 while in service due to heart 2 failure. The petitioner has placed on record the death certificate as Annexure-1. Late Abdul Aziz left behind him his wife Shahida and three other children including the petitioner. After his death, it became very difficult for the family members of deceased to survive, therefore, an application was moved by the petitioner being elder son of deceased employee for providing appointment on compassionate ground. The said application was filed by him in proper performa along with required documents within time prescribed for filing such application from the date of death. The petitioner is possessing senior higher secondary qualification. Other family members including wife of late Abdul Aziz also gave their consent to provide appointment to the petitioner on compassionate ground. As per the facts of the case, the family of the deceased Bank employee was allowed pension of Rs.3669/- per month and amount was released under the head of gratuity, P.F. and other welfare funds amounting to Rs.2,63,415/- but the same was adjusted towards the bank loans taken by the father of the petitioner. Further, it is stated by the petitioner that the amount of Rs.14,158 was transferred to the Bank account of his mother and amount of Rs.1,71,274/- received under the Heads of L.I.C., was paid to the deceased family of late Abdul Aziz. 3 The contention of the petitioner is that amount received under the Head of L.I.C. was also paid towards the other personal loans taken from the relatives and neighbours and affidavit was also filed along with application for providing appointment on compassionate ground. Therefore, as per the petitioner's contention, the family of deceased Abdul Aziz in which the petitioner is also one of the member is getting only pension of Rs.3669/-, which is not sufficient for surviving their livelihood. Therefore, the petitioner made several requests for providing appointment on compassionate ground as per the policy laid down by the respondent-Bank. In support of contention of adjustment of the amount of retiral benefits, the petitioner has placed on record Annexure-3 dated 17.7.2003. The application filed by the petitioner for providing appointment on compassionate ground was rejected by the respondents vide letter dated 5.3.2004 on the ground that the amount received under the Head of terminal benefits and family pension is sufficient for the maintenance of the family of the deceased. Therefore, it is observed that the terminal benefits have also been paid, therefore, as per the scheme of the Bank, the petitioner is not entitled for providing compassionate appointment. 4 After rejection of the application, representations dated 25.3.2004 and 14.12.2004 were filed by the petitioner in which it was specifically mentioned that the terminal benefits paid to the family have already been adjusted towards loan amount, therefore, the denial of appointment is totally illegal but it has come to the knowledge of the petitioner that as many as 18 dependents of deceased employees working in the various Branches of the respondent Bank were providing appointment on compassionate ground in between the period from April, 2004 to March, 2005, therefore, the petitioner's case was to be considered at part with those persons who were provided appointment on compassionate ground but on illegal grounds, the rightful claim of the petitioner has been rejected, therefore, as per the petitioner, denial of the appointment on compassionate ground is arbitrary, illegal and in violation of Article 14 of the Constitution of India. Learned counsel for the petitioner vehemently argued that as per the scheme of the Bank although the assessment is required to be made by the respondents for the purpose of ascertaining actual resources for maintenance of the deceased family but in case of the petitioners all the norms have been ignored and only on the basis of the fact that certain amount of terminal benefits were paid to the family of the deceased employee and family is getting pension of 5 Rs.3669/-, which is sufficient for maintenance but in fact the respondent Bank was under obligation to consider the fact that terminal benefits so paid has already been adjusted against the loan taken by the deceased employee during his service tenure but all these facts were ignored and petitioner's family is still living in hardship and it is not possible for the family of the deceased employee to face financial crisis, therefore, the denial of appointment is totally illegal and have no foundation to stand before eye of law, therefore, the impugned order dated 5.3.2004 may be quashed and the respondents may be directed to provide appointment to the petitioner on compassionate ground while considering his case at par with those 18 dependents of the deceased Bank employees who were provided appointment on compassionate ground in between the period commencing from 4.4.2004 to 1.3.2005. By way of filing reply, it is submitted by learned counsel for the respondents that the case of the petitioner for providing compassionate appointment was considered within the four corners of the Scheme so framed by the respondent Bank for considering cases of compassionate appointment. The case of the petitioner was rightly considered by the respondents in which the respondent Bank found that there is sufficient means for the family to survive and while considering the case of the petitioner. It was taken 6 into consideration the fact that terminal benefits were paid to the family of the deceased employee, so also, an amount of Rs.3669/- towards the pension has been sanctioned, which is sufficient for survival of the family of the deceased employee, therefore, the main purpose for providing appointment on compassionate ground is to see whether the family of the deceased employee is having sufficient means to survive or not, therefore, after consideration when it is found that there are means including terminal benefits and pension amount for survival of the family. Therefore, after due consideration, the application of the petitioner for providing compassionate appointment was rejected. According to learned counsel for the respondents, the petitioner has no case in view of the number of judgments rendered by Hon'ble Supreme Court, specifically in case of Umesh Kumar Nagpal vs. State of Haryana, reported in (1994) 4 SCC 138 in which it has been held that the compassionate appointment cannot be claimed as a matter of right. Nobody can claim the compassionate appointment has vested right. Similarly in case of General Manager (D&PB) Vs. Kunti Tiwary, reported in (2004) 7 SCC 271 and in case of Punjab National Bank vs. Ashwini Kumar Taneja reported in (2004) 7 SCC 265, it has been held by Hon'ble Supreme Court that while elaborating fact that compassionate appointments cannot be claimed as a 7 matter of course. The relevant factors are required to be considered and delay was also considered as relevant factor for denying the appointment in so many judgments. Learned counsel for the respondent Bank submits that the Division Bench of this Court had occasion to consider the scheme of the respondent Bank governing the province of compassionate appointments dated March 11, 1997 in D.B. Civil Special Appeal (Writ) No.219/2004 (State Bank of Bikaner & Jaipur & Ors. Vs. Vishnu Parihar) in which it has been held that while considering the request of the incumbent for compassionate appointment, financial condition of the family is very much relevant and such a request can very well be declined, if the financial condition of the family is sound enough to tide over the crisis. Therefore, it is prayed that this writ petition deserves to be dismissed because the case of the petitioner was considered within the four corners of the Scheme that the financial condition of the family is sound enough to maintain the whole family, therefore, there is no ground for interference in this writ petition. Learned counsel for the respondents further argued that in application Annexure-2, it is mentioned by the petitioner that his father is survived by his wife and three children and family members are facing 8 difficulty to survive their livelihood. This fact is far from the truth because the mother of the petitioner is getting money pension to the tune of Rs.3669/- and family is earning monthly income approximately to the tune of Rs.2000/- from the net surplus to the tune of Rs.3,74,986 available with them, which is paid as terminal amount, therefore, there is no right created in favour of the petitioner to seek appointment on compassionate ground. As per the respondents, the petitioner has shown his age 22 years and his qualification as 10 + 2 but he has not stated as to what studies is he pursuing at present, therefore, on the basis of qualification possessed by the petitioner and other relevant factors including financial condition of the family of the deceased employee, the Bank has rightly declined the request of the petitioner for providing appointment on compassionate ground. Therefore, it does not require any interference by this Court. With regard to providing appointment to 18 other dependents of the deceased Bank employee, it is submitted that the respondent Bank has provided appointment on compassionate ground while considering facts of each case on its merit and keeping in view the provisions of scheme. The petitioner cannot claim his appointment on the ground that other persons were provided appointment because every case is required to 9 be considered in accordance with the scheme so framed by the Bank and it is required to be considered by the respondent Bank being employer that the case is worth consideration or not on the basis of the financial condition of the deceased employee, therefore, the contention of the petitioner that the rejection of the petitioner's claim is violative of Articles 14, 16 and 21 of the Constitution of India is devoid of any merit. The action of the respondent Bank is justified and not in violation of any of the provisions of the Constitution. Although, the petitioner is trying to expose his case that he is entitled for appointment on compassionate ground because other 18 persons were provided appointment having same facts of the case but this assertion of the petitioner is totally unfounded, therefore, this writ petition may be dismissed. Learned counsel for the respondents vehemently argued that as per the judgment reported in (2007) 4 SCC 778 (State Bank of India & Anr. Vs. Somvir Singh) once the competent authority of the appellant Bank on consideration of all the relevant factors for assessing the financial condition of the family of the deceased employee found that the family was not in penury and without any means of livelihood has held that the High Court in exercise of the power under Article 226 of the Constitution of India has erred in again going into the question of financial condition and interfering with the finding of the 10 competent authority. In this judgment as per learned counsel for the respondents, the Hon'ble Apex Court has held that High Court can only see whether the decision making process rejecting the claim of the dependent of the deceased employee for compassionate ground was vitiated and whether the order of the competent authority rejecting the application was not in conformity with the scheme of the Bank. Therefore, while inviting attention towards the facts of the present case, the counsel for the respondents vehemently prayed that the case of the petitioner was considered on the basis of the financial condition and benefits received by the family from the Bank and it is found that as per the scheme, the petitioner is not entitled to get appointment on compassionate ground. This finding of the competent authority of the Bank does not require any interference under Article 226 of the Constitution of India in view of the above judgment. Therefore, this writ petition may be dismissed. During the course of arguments on 18.7.2008, counsel appearing for the Bank was directed to furnish information with regard to the appointments made in between the period 4.4.2004 to March, 2005 and in pursuance of the said query made by this Court, an additional affidavit was filed along with the chart Annexure-R/1 of consideration in which the details of 18 persons who were provided appointment have been 11 furnished by the Bank. Learned counsel for the respondents submits that the financial status of 14 families at the time of death of the bread earner were not at all comparable with the petitioner whose names are at Sl. Nos. 1 to 7, 9, 11, 12 and 14 to 18. It is submitted that three cases are clearly distinguishable for the reason mentioned in the last column under the caption “remarks”. Therefore, claim of individuals shown at Sl. No. 8, 10 and 13 in Annexure-R/1 found favour from the Bank for compassionate appointment on genuine grounds because in all these three cases, children were minors and unemployed whereas in case of petitioner all dependents were major at the time of death of his father, therefore, this factual position his clearly evident from the recitals contained in Annexure-2. The claim of the petitioner has rightly been rejected after considering all the facts objectively. In this case, after hearing both the parties and perusing all the relevant record of the case, I am of the firm opinion that contention of the respondent's counsel is perfectly correct that appointment on compassionate ground cannot be claimed as a matter of right in view of the adjudication made by Hon'ble Apex Court in various cases but at the same time, the Hon'ble Court has held that in the event of 12 finding with regard to financial hardship of family comes to the knowledge of the Court and it is found upon the facts that the application has been rejected on illegal grounds, then certainly Court can adjudicate the matter. In this regard my opinion gets strength from the judgment cited by learned counsel for the respondents reported in (2007) 4 SCC 778. In that judgment, the Hon'ble Apex Court has held that High Court can only find whether the decision making process rejecting the claim of the dependents of the deceased employee for compassionate appointment is vitiated on the ground that competent authority while rejecting the dependent's application has not considered the scheme so framed by the Bank so also, can scan the order of rejecting application on the ground if the order is not in conformity with the scheme so framed by the Bank, therefore, in none of the judgments, the Hon'ble Apex Court has held that High Court cannot examine the order of rejecting any claim of the claimants seeking appointment on compassionate ground but only restriction has been made that no person can claim compassionate appointment as a matter of right and employer is having all jurisdiction, power and discretion to provide compassionate appointment in accordance with the Rules or Scheme so framed for the said purpose and in that event, in my opinion, if any particular benefit is extended to certain other persons while rejecting the claim of the applicant who has 13 approached the Court, then, the Court can examine the claim of the said petitioner, who is claiming compassionate appointment upon the facts that his case has been ignored and other persons were provided appointment having same set of facts. In this view of the matter, I am examining the merits of the case because admittedly upon assertion made by the petitioner that 18 persons were provided appointment, the respondent counsel while accepting the said contention that 18 persons were provided appointment filed an additional affidavit, showing that the cases of all those persons cannot be treated at par with the case of the petitioner. In this writ petition, the adjudication is to be made whether the petitioner's claim is not at par with those persons who were provided appointment by the respondent Bank after rejecting application filed by the petitioner. In the additional affidavit submitted by the respondent Bank in para-3, it is admitted that out of 18 persons, 14 cases are not at all comparable with the claim of the petitioner and for rest of the persons, it is submitted that they found favour from the Bank on genuine grounds because at the time of death of deceased employee in remaining three cases, mentioned at Sl. No.8, 10 and 13, the children were minor and unemployed but in case of petitioner, all 14 the dependents were major at the time of death of their father. Therefore, the case of these three persons is also not comparable with the case of the petitioner. In my opinion, it is very strange that in the scheme, the consideration is to be made on the basis of financial status and resources of the particular family but here in this admittedly, three persons were provided appointment on the ground that at the time of death, the children were minor and unemployed. I am unable to understand how a minor can be appointed and how a minor can claim appointment. Obviously, if the dependent is major then only he will claim appointment on compassionate ground. The details of the persons shown at Sl. No.8, 10 and 13 in the Annexure-R/1 is as follows : S. N. NAME OF EMPLOYE E BRAN CH A G E IN Y E A R S POS T ON WHI CH APP OIN TED DATE OF APPO INTM ENT N O O F D E P E N D E N T S AG E OF DE PE ND EN TS IN YE AR S AMO UNT OF ASS ETS IN RS. AM OU NT OF LIA BIL ITI ES IN RS. AM OU NT OF PE NSI ON IN RS. Mo nthl y app roxi mat e inco me on inve stibl e fun ds Rs. AN Y OT HE R IN CO ME IN RS. TO TAL INC OM E Net Salary piror to death of employ ee in Rs. REMARKS 8 Shri Dinesh Mahan S/o Late Ashok Mahan Sodala Jaipur 21 Clerk 27.9.04 6 46,21 ,16,1 2,77, 75 124146 2 10645 61 4888 845 Nil 5733 13960 Two minor children. All are unemployed. 10 Smt. Urmila w/o Late Rajendra Kumar Nana 32 Peon 30.12.04 3 31,9, 7 372929 20367 3 4281 818 Nil 5099 9551 Two minor children. All are unemployed. 13 Smt. Santosh Devi w/o Late Ram Ratan Kalyania ADB Udaipurw ati 33 Peon 22.01.05 6 33,22 ,20,1 6,15, 15 344309 12916 0 4303 1409 Nil 5712 6249 Three minor children. All are unemployed. 15 Upon perusal of above information, it is obvious that the person whose name is shown at Sl. No.8 was major at the time of providing appointment and other members of the family were also major except two persons. Likewise, the person who has been provided appointment whose name is at Sl. No.10, her total income was Rs.5099/- and total income of the persons, whose name is at Sl. No.13 was Rs.5712/-, which is evident from the documents placed on record by the respondent Bank as Annexure-R/1. In this view of the matter, admittedly, in case of the petitioner, pension of Rs.3669/- was allowed and other retiral benefits were adjusted towards the loan by the Bank and other persons and admittedly all the three children of deceased employee including the petitioner were minor and for their education, more amount is required in comparison to the minor persons, therefore, in my opinion, the consideration of the case of the petitioner by the Bank is totally unjustified. The rejection cannot be made as per the the Scheme except the financial condition of the family. The other grounds which is admittedly taken into consideration that in other cases children were minor, I am unable to understand how such type of ground can be taken into consideration by the Bank for rejecting the claim of the petitioner. More so, when 18 persons have been provided appointment on different counts out of which 16 the families of so many persons are getting more pension then the family of the petitioner, then, how the claim of the petitioner can be rejected on the ground that children were minor at the time of death of their father. In this view of the matter, the consideration is wholly unjustified and petitioner's case has been rejected on illegal grounds, which is discriminatory because other 18 persons were provided appointment after death of petitioner's father. It is also required to be mentioned her that the petitioner's application was rejected on 5.3.2004 whereas all other 18 persons were provided appointment after rejection of the petitioner's application. Meaning thereby, vacancies were there and at the time of consideration of the petitioner's application, these 18 persons who were provided appointment after rejection of petitioner's application were not considered with the petitioner's case because it is evident from the Chart that these 18 appointments were made in between the period from 1.4.2004 to March, 2005 whereas the petitioner's application was rejected on 5.3.2004. Meaning thereby, the petitioner's case was not considered along with these 18 persons and after rejection of the petitioner's case, these 18 persons were provided appointment. Therefore, this writ petition deserved to be allowed on the ground that as per the Chart produced by the respondents, other similarly situated persons were provided appointment on compassionate ground while rejecting 17 the claim of the petitioner which is violative of Articles 14 and 21 of the Constitution of India. In this view of the matter, this writ petition is allowed. The respondents are directed to provide appointment to the petitioner forthwith commensurating with his qualification on a suitable post. No order as to cost. (GOPAL KRISHAN VYAS), J.