CW 5392/06 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.5392/2006 Naveen Parashar Versus State Bank of Bikaner & Jaipur and Anr. Date of Order ::: 03/03/09 Hon'ble Mr. Justice Ajay Rastogi Mr. Amit Jindal, for petitioner Mr. Gopal Krsn Garg, for respondents-Bank Instant petition has been filed by petitioner seeking compassionate appointment in terms of policy under Circular dt.11/03/97 (Ann.R.1) of respondent Bank. Bhanwar Lal, father of petitioner while working as Special Assistant (Clerical) in State Bank of Bikaner & Jaipur, Branch, Malpura (Tonk) (respondent NO.2) died on 16/07/2000 leaving behind his dependent family consisting of old aged mother, wife, two sons including petitioner aged 24 years & 16 years, besides two daughters aged 21 & 18 years; having no other bread-winner in their family. As a consequence of untimely death of their bread-winner, all six members of bereaved family were put to a stage of penury & destitution, on being reduced in harness besides causing financial crisis & crunch, being eldest son and holding academic qualification of B.Sc., & Diploma in Computer, applied for compassionate appointment immediately on 08/08/2000 (Ann.1), CW 5392/06 //2// duly submitted in prescribed format dt. 22/09/2000 (Ann.2) to the competent authority for consideration in terms of policy framed by respondent-Bank under Circular dt.11/03/97 (Ann.R.1) and recommended by Branch Manager, Malpura (Tonk) where his father before death was posted, as is evident from letter dt.13/03/2001 (Ann.3) – in response to which, respondent Bank called upon petitioner vide letter dt.30/04/2001 (Ann.4) to make certain corrections in his application about figures of amount of pension & bank loans, which were duly complied with where no action was taken on his application considering for compassionate appointment, Ratan Devi, mother of petitioner sent application dt. 23/02/04 (Ann.5) which was again duly forwarded by Branch Manager (respondent NO.2) recommending his case being of a genuine hardship to the bereaved family vide letter dt.23/02/04 (Ann.6) addressed to the respondent No.1. Unfortunately grand mother of petitioner also later on expired and his sisters also became of marriageable age and when no intimation either way was received from the respondent-Bank even after his representation dt.19/04/2005 (Ann.7), and after legal notice served (Ann.8) dt.08/08/05, petitioner CW 5392/06 //3// approached this Court by way of instant petition. Notices were issued vide order dt. 20/07/06 and served upon respondents as per office report dt.16/10/06 – as per which Power on behalf of respondents-Bank was filed on 22/08/06; while after a lapse of almost two & half years, reply was filed on 16/02/09 while the matter was taken up after several adjournments. In reply, respondents-Bank inter-alia averred that in view of certain judgments of Apex Court, compassionate appointment can be considered taking note of financial condition of the bereaved family. It has also been averred that the Bank considered financial status of the bereaved family of the deceased as per Scheme/Circular (Ann.R.1) and after due consideration, case of petitioner for compassionate appointment was rejected by Bank upon having found him not eligible. It is significant to mention here that nothing has been placed on record by which it can be inferred that case of petitioner was ever considered and on what premise, he was found to be in-eligible for compassionate appointment under Scheme/Circular (Ann.R.1). CW 5392/06 //4// I have considered rival contentions of Counsel for the parties and with their assistance, examined material on record. It is indeed a rule that appointment in public services have to be made strictly through invitation of applications and by open competition in consonance with Art. 14 & 16 of the Constitution of India but, as every rule can have exceptions, which have been evolved to meet out contingency, and as per one such exception, relief is provided to the bereaved family of a deceased employee by accommodating one of his dependents in the family against suitable posts in accordance with relevant service Rules or administrative instructions or Scheme, as the case may be, after taking note of financial condition of bereaved family since object behind is to give succour to the family, which has been plunged into penury state & harness due to untimely death of their sole bread-winner. In a recent decision of Apex Court in V. Sivamurthy Vs. State of Andh. Pradesh (2008 AIR SCW 6114), principles relating to compassionate appointments have been summarized ad infra : “9. The principles relating to compassionate appointments may be summarized thus : (a) Compassionate appointment based CW 5392/06 //5// only on descent is impermissible. Appointments in public service should be made strictly on the basis of open invitation of applications and comparative merit, having regard to Articles 14 and 16 of the Constitution of India. Though no other mode of appointment is permissible, appointments on compassionate grounds are well recognised exception to the said general rule, carved out in the interest of justice to meet certain contingencies. (b) Two well recognized contingencies which are carved out as exceptions to the general rule are : (i)appointment on compassionate grounds to meet the sudden crisis occurring in a family on account of the death of the bread-winner while in service. (ii) appointment on compassionate ground to meet the crisis in a family on account of medical invalidation of the bread winner. Another contingency, though less recognized, is where land holders lose their entire land for a public project, the scheme provides for compassionate appointment to members of the families of project affected persons. (Particularly where the law under which the acquisition is made does provide for market value and solatium, as compensation). (c) Compassionate appointment can neither be claimed, nor be granted, unless the rules governing the service CW 5392/06 //6// permit such appointments. Such appointments shall be strictly in accordance with the scheme governing such appointments and against existing vacancies. (d) Compassionate appointments are permissible only in the case of a dependant member of family of the employee concerned, that is spouse, son or daughter and not other relatives. Such appointments should be only to posts in the lower category, that is, class III and IV posts and the crises cannot be permitted to be converted into a boon by seeking employment in Class I or II posts.” In instant case, respondents-Bank has framed Scheme in respect of compassionate appointment for dependents of employees who died while in service or who were retired on compassionate grounds, vide Circular dt.11/03/97 (Ann.R.1), which prescribes objects of the Scheme, category of posts, extension of time for taking up compassionate appointment, vacancy, financial condition of the family – extract whereof reads ad infra: “2. Based on the guidelines issued by the Government of India and State Bank of India, it has been decided to modify the scheme of compassionate appointment in the Bank. The modification/amendments to the scheme are as under :- CW 5392/06 //7// (i) Object of the scheme - The whole object of granting compassionate appointment is to enable the family to tide over the sudden crisis due to the death of the bread winner. The mere death of an employee in harness does not entitle his family to such a livelihood. The object of the scheme would be to offer compassionate appointments only when the Bank is satisfied that the financial condition of the family is such that but for the provision of employment the family will not be able to meet the crisis. This will apply mutatis-mutadis to the scheme for appointment of dependents of employees who retire on medical grounds. (ii)Category of posts – Appointment on compassionate grounds will henceforth be offered in clerical/ subordinate cadre only depending upon the educational qualification of the candidate, as specified in the scheme. (iii)Extension of time for taking up compassionate appointment – (a) requests for appointment under the scheme should be received by the Bank, at the earliest and in any case, not later than one year from the date of death of the employees. In respect of employees who retire on medical grounds, such requests should be received immediately or CW 5392/06 //8// latest within sixty days from the dates of retirement from service. (b) If the dependent is a minor his/her case can be considered at the discretion of the Bank, within a maximum period of six years from the date of death/cessation of service on medical grounds of the employee. However, in case the dependent wishes to acquire suitable minimum/ certain qualification, this can also be considered, at the discretion of the Bank within a maximum period of four years from the date of death/ cessation of service on medical grounds of the employee. (iv) Vacancy – Compassionate appointment shall be considered by the Bank against vacancy. (v) Financial condition of the family – Appointments in the public services are made strictly on the basis of open invitation of applications and merits. However, exceptions are made in favour of dependents of employees dying in harness and leaving their family in penury and without any means of livelihood. Determining financial condition of the family is, therefore, an important criterion for determining the eligibility for compassionate appointment. The following factors would be taken into account for determining the financial condition of the family CW 5392/06 //9// (a) Family pension; (b) Gratuity amount received; (c)Employee's/employers' contribution to Provident fund; (d) Any compensation paid by the Bank or its Welfare Fund; (e) Proceeds of LIC policies and other investments of the deceased employee; (f) Income for family from other sources; (g) Income of other family members from employment or otherwise; (h) six of the family and liabilities, if any.” As per object under Scheme (Ann.R.1), compassionate appointment is a measure of financial assistance & social protection to the bereaved family so that it may tide over financial crisis upon untimely death of their sole bread-winner (deceased employee). It has also been emphasised in para 2(iii) of the Scheme (Ann.R.1) that appointment should be made within a reasonable time as referred to therein; and while under para 2(v) thereof (supra), financial condition of the family may be such which is not sufficient to sustain without compassionate appointment. In instant case, at the time of death of sole bread winner (deceased employee), apart from his old aged mother, his wife & four CW 5392/06 //10// children were completely dependent upon him and no one was in employment and petitioner being eldest among four children submitted application on 08/08/2000 immediately after death of his father (bread-winner of his family). It is relevant to mention that Brach Manager Malpura (Tonk) while forwarding application seeking compassionate appointment (Ann.3) taking note of family pension @ Rs. 4227=84p., and total retiral benefits which were paid to the family of deceased employee and taking note of family liability, total income @ Rs.4674=84p while gross salary payable to the deceased at the time of his death was Rs.14610/- as against net Rs. 9235/- per month as upon having taken loan, there being deduction at source and thus taking note of penury condition of family of the deceased, respondent NO.2 Bank's Branch Manager strongly recommended a case being genuine for compassionate appointment. However, matter remained pending with respondent No.1-Bank for sufficient long time and when no result came forward on his application, petitioner was constrained to approach this Court in the year 2006. In the meantime, grand mother of petitioner died leaving behind five members in the bereaved CW 5392/06 //11// family being dependents, for sustenance of whom, total amount remained available at their disposal after untimely death of their sole breadwinner (deceased-employee) was only Rs. 4674=84 as noted by Branch Manager in its report referred to the respondent NO.1 authority. It was expected from the respondent Bank authority to immediately consider application submitted by petitioner seeking compassionate appointment and what has been considered by Apex Court in a catena of decisions, appointment should also be made within reasonable time but in the facts & circumstances of instant case, respondents-Bank kept his application in lurch for almost nine years and despite notices being served on 22/08/06 when Counsel filed Power on their behalf, but the reply was filed in February, 2009, after almost two & half years of service of notices, and made an averment that looking to financial condition of the family of deceased, petitioner was not found to be eligible to seek compassionate appointment. What were the considerations prevailed and the premise on which respondents-Bank arrived at conclusion to find petitioner in- eligible to seek compassionate appointment because of financial condition of family, all CW 5392/06 //12// have not been disclosed in the reply to writ petition and even it has also not been informed to this Court in course of arguments as to when his application was rejected and he was communicated; and the facts is that petitioner came across only when copy of the reply to writ petition was served that his application stood rejected. Even the date of rejection of his application if at all there is any, that too has not been disclosed in the reply. This clearly shows that for reasons best known, respondents Bank has never taken care of, to examine his application objectively while considering his application seeking appointment as per their own Scheme/Circular (Ann.R.1). Submission made by Counsel for respondents-Bank that on account of the delay application of petitioner cannot now be considered for compassionate appointment, is bereft of merit for the reason that petitioner diligently submitted application on 08/08/2000 within less than thirty days of untimely death of their bread-winner and if the respondent-Bank has failed to objectively consider his application and pass appropriate orders in terms of Scheme/Circular (Ann.R.1); atleast the latches in no manner can be attributed to the CW 5392/06 //13// petitioner which may dis-entitle him for claiming relief of compassionate appointment under Scheme/Circular (Ann.R.1). Another submission on behalf of respondents-Bank that petitioner who claimed himself as one of dependents, has solemnised his marriage which disentitles him for compassionate appointment, is again bereft of merit for the reason that on the date of submission of application, petitioner was not married and by passage of time, all social customs and obligations are to be performed by the family and if petitioner or one of dependents of the deceased employee becomes of marriageable age later on after death of sole bread-winner; and if he has solemnised his marriage that will not dis-entitles him or which will hold him in- eligible for consideration under Scheme (Ann.R.1) and mere solemnization of marriage will not dis-entitles him to claim compassionate appointment. This Court is of the considered opinion that respondents-Bank has not objectively considered claim of petitioner for compassionate appointment under Scheme (Ann.R.1). It has come on record that at the time of untimely death of sole bread-winner (deceased employee), six CW 5392/06 //14// surviving members including widow & four unmarried children besides mother of deceased were solely dependents and total financial resources available to them as computed by respondent NO.2 Bank's Branch Manager as is evident from forwarding letter dt.13/03/01 (Ann.3) was Rs. 4674=84p., per month, and however, this Court cannot be oblivious of the cost living index exorbitantly rising day by day in last decade and amount remained available at their disposal for their sustenance cannot be considered as sufficient to tide over financial crunch of the bereaved family. Consequently, writ petition succeeds and is hereby allowed. The so-called rejection of petitioner's candidature for compassionate appointment while holding him to be in-eligible under Scheme as referred to in the reply to writ petition, is hereby quashed and set aside and respondents-Bank are directed to consider his application as per Bank's Scheme (Ann.R.1) for compassionate appointment against available vacant posts as referred to in para 2(ii) of Scheme (Ann.R.1). Compliance be made within three months. No order as to costs. (Ajay Rastogi), J. K.Khatri/p.14/5392CW06CpspttBnk3Mar.doc