[2015]9S.C.R. 724

CANARABANKANDANR.

M. MAHESH KUMAR

(Civil Appeal No.260/2008 etc.)

MAY 15, 2015

[T.S. THAKUR AND R. BANUMATHI, JJ.]

Service Law:

C Appointment- Compassionate appointment- Claim for

- Under compassionate appointment scheme of 1993 of the employer-Bank - Rejection of claim by the Bank - During pendency of the case for seeking consideration of the claim, compassionate appointment scheme replaced with the D scheme of'ex-gratia payment' of 2005- Entitlement to the claim of compassionate appointment - Held: Claim of compassionate appointment under a scheme of a particular year cannot be decided in the light of the subsequent scheme that came into force much after the claim - In the present E case, cause of action arose when 1993 scheme was in force, hence the claim cannot be decided as per 2005 scheme - The circular whereby 2005 scheme was brought in, being an administrative/executive order, cannot have retrospective F effect- Claimant's family getting family pension and terminal benefits is of no consequence in considering the application of compassionate appointment - Direction to Bank to consider the application of the claimant as per 1993 scheme.

Dismissing the appeals, the Court

HELD: 1. TheobjectoftheSchemedatedS.05.1993 vide Circular No.154/1993 for "compassionate appointment" is to help dependants of employees of the

CANARA BAN KAND ANR. v. M. MAH ESH KUMAR 725

employer-Bank who die or become totally and A permanently disabled while in harness and to overcome the immediate financial difficulties on account of sudden stoppage of the main source of income. The employment under the scheme will be considered only if there are indigent circumstances necessitating employment to B one of the dependants and the deceased employee's service record is unblemished. Mere eligibility will not vest a right for claiming employment. [Para 9] [732-H;

733-A-C]

2. Claim of compassionate appointment under a scheme of a particular year cannot be decided in the light of the subsequent scheme that came into force much after the claim. In the present case, the cause of action

to be considered for compassionate appointment arose D when the Circular No.154/1993 dated 8.05.1993 was in force. Thus, the claim cannot be decided as per 2005 Scher:ne providing for ex-gratia payment. The Circular dated 14.2.2005 being an administrati.\re or executive order cannot have retrospective effect so as to take E away the right accrued to the respondent as per circular of 1993. [Paras 11and13] [734-G; 738-C-D]

State Bank of India & Ors. vs. Jaspal Kaur(2007) 9 SCC 571: 2007 (2) SCR 101; Bhawani Prasad Sankar vs. Union F of India & Ors. (2011) 4 SCC 209: 2011 (4) SCR 630 - relied on.

3. The 2005 Scheme providing only for ex-gratia payment in lieu of compassionate appointment stands G superseded by the Scheme of 2014 which has revived the scheme providing for compassionate appointment.

As on date, now the scheme in force is to provide compassionate appointment.

Under these circumstances, the appellant-Bank is not justified in H

A contending that the application for compassionate appointment of the respondent cannot be considered in view of passage of time. [Para 14] [738-E, F]

4. The respondent's family getting family pension

8 and terminal benefits is of no consequence in considering the application for compassionate appointment. Clause 3.2 of 1993 Scheme says that in case the dependant of deceased employee to be offered appointment is a minor, the bank may keep the offer of c appointment open till the minor attains the age of majority. This would indicate that granting of terminal benefits is of no consequence. [Para 15] [738-G-H; 739-

A-B]

0 BalbirKaur&Anr. vs. Steel Authority of India Ltd. & Ors.

(2000) 6 sec 493: 2000 (3) SCR 1053 - relied on.

5. The appellant bank is directed to consider the case of the respondents for compassionate appointment as per the Scheme which was in vogue at the time of death E of the concerned employee. [Para 19] [740-F]

Sushma Gosain & Ors. vs. Union of India & Ors. (1989) 4 SCC 468; MGB Gramin Bank vs. Chakrawarti Singh (2014)

13 SCC 583: 2013 (10) SCR 1 ; Umesh KumarNagpalvs.

F State of Haryana & Ors. (1994) 4 SCC 138: State of Manipur vs. Md. Rajaodin (2003) 7 SCC 511: 2003 (3) Suppl. SCR 107 Steel Authority of India Ltd. vs. Madhusudan Das & Ors.

(2008) 15 SCC 560: 2008 (14) SCR 824and SanjayKumar

VS. State of Bihar& Ors. (2000) 7 sec 192: 2000 (2) Suppl.

G SCR 710 - referred to.

Umesh Kumar Nagpal vs. State of Haryana and Ors.

(1994) 4 SCC 138; Steel Authority of India Ltd. vs.

Madhusudan Das & Ors. (2008) 15 SCC 560: 2008 (14) H SCR 824; Union of India & Anr. vs. B. Kishore (2011) 4

SCALE 298; State of Haryana vs. Naresh Kumar Bali (1994)

CANARABANKANDANR. v. M. MAHESH KUMAR 727

4 SCC 448; State Bank of India & Ors. vs. Jaspal Kaur(2007) A 9 SCC 571: 2007 (2) SCR 101; State Bankoflndia &Anr. vs. Raj Kumar (2010) 11 SCC 661 - cited.

Case Law Reference

(1994) 4 sec 138 cited Para4 8

2008 (14). SCR 824 cited Para4

(2011) 4 SCALE 298 cited Para4

(1994) 4 sec 448 cited Para4 c

2007 (2) SCR 101 cited Para4

(2010) 11 sec 661 cited Para 4 D

(1989) 4 sec 468 referred to Para 7

2013 (10) SCR 1 referred to Para 7

(1994) 4 sec 138 referred to Para 8 E 2003 (3) Suppl. SCR 107 referred to Para 8

2008 (14) SCR 824 referred to Para 8

2000 ( 2) Suppl. SCR 710 referred to Para 8 F .

2007 (2) SCR 101 relied on Para 11

2011 (4) SCR 630 relied on Para 12

2000 (3) SCR 1053 relied on Para 16 G CIVILAPPELLATE JURISDICTION: Civil Appeal No. 260 of2008 . ..

From the Judgment and Order dated 24.08.2006 High Court of Kerala at Ernakulam in Writ Appeal No. 1313/2003[8]. H

WITH

C. A. Nos. 266 & 267 of 2008

[2015] 9 S.C.R.

Naveen R. Nath, Lalit Mohini Bhat, Hetu Arora Sethi, B Rajeev Mishra, Sanand Ramakrishnan for the Appellants.

Dr. K. P. K. Pillay, P.A. NoorMuhamed, V. S. Lakshmi, K.

Sarada Devi, Naveen R. Nath for the Respondent.

The Judgment of the Court was delivered by

R. BANUMATHI, J. 1. Common question of law falling for consideration in these civil appeals is whether the dependant family members of the deceased employee of the appellant-Canara Bank were entitled to seek compassionate D appointment on the basis of 'Dying in Harness Scheme' which was passed Vide Circular No.154/1993 w.e.f. 8.05.1993. The claim is resisted by the Canara Bank on the ground that the financial condition of the family members of the deceased employees is good and that the Scheme dated 8. 05.1993 has E been replaced with scheme dated 14.02.2005 (H. 0. Circular No.35/2005) scrapping the provision of compassionate appointment and in lieu thereof introduced the new scheme of ex-gratia payment.

2. In Civil Appeal No.260/2008, the Division Bench of the High Court of Kerala at Ernakulam vide its Order dated 24.08.2006 in WritAppeal f\jo. 1313/2003 (B) titled as Canara Bank & Anr. vs. M. Mahesh Kumar directed the bank to reconsider the claim of the claimant- M. Mahesh Kumar within G two morH:hs from the date of order. Further, due to the pendency . of SLP against the decision dated 24.08.2006 in Writ Appeal No.1313/2003(B), the Division Bench of the High Court of Kerala also disposed off the Writ Appeal Nos.2333/2006 and 2335/2006 vide common order dated 11.12.2006 and directed H the claimants to approach this Court. Assailing the aforesaid

CANARA BANKAND ANR. v. M. MAH ESH KUMAR 729

[R. BANUMATHI, J.]

three decisions of the Division Bench of the Kera la High Court, A the appellant-bank has filed the instant appeals.

3. For convenience, Civil Appeal No.260/2008 is taken as a lead case. Brief facts which led to the filing of the appeal are as follows:- Respondent applied to the appellant-bank on B 30.11.1998 claiming to be considered for compassionate appointment on account of death of his father, a clerk in the appellant-bank who while on duty died on 10.10.1998.

Rspondent had applied forthe compassionate appointment on account of 'Dying in Harness Scheme' with effect from C 8.05.1993 then in vogue in the_ appellant-bank. The bank vide its communication dated 30.06.1999 rejected the claim of the respondent on the ground that the respondent's family financial position does not show any indigent circumstances warranting to provide employment on compassionate ground. The D respondent gave his representation to the General Manager of the appellant-bank and several other representations for reconsideration of his claim; but nothing fruitful happened in consideration of respondent's claim for compassionate appointment. Thereafter, respondent filed 0. P. No.21630/2002 E (.Y) before the High Court of Kerala, Ernakulam seeking to quash the Ext. P4 and direction to the appellant-bank to appoint him as per 'Dying in Harness Scheme' then in force in the appellant-bank. The learned Single Judge of the High Court F vide judgment dated 30.05.2003 allowed the Original Petition of the respondent herein and quashed Ext.P4 and directed the appellant-bank to reconsider the claim of the respondent for appointment in accordance with law within two months from the date of receipt of copy of judgment. Appellant-bank assailed G the decision of the larned Single Judge in Writ Appeal

No.1313/2003 (B) and the Division Bench upholding the order of the Single Judge dismissed the writ appeal. The appellantbank has filed this appeal assailing the correctness of the

A above order.

4. Learned counsel for the appellant-bank contended that consideration for appointment on compassionate ground is contrary to Articles 14 and 16 of the Constitution of India and B is only in the nature of concession and, therefore, it does. not create a vested right in favour of the ciaimanUrespondent. It. was submitted that 'Dying in Harness Scheme' is a nonstatutory scheme and is in the form of a concession and it does not create a vested right in favour of the claiman.U C respondent to be enforced through a writ of mandamus. It was further submitted that _the compassionate appointment is justified when it is granted to provide immediate succour to the deceased-employee's dependants and cannot be granted on the passage of time and in all these cases, the concerned D employee died about two decades ago and, therefore, the High Court was not justified in directing the appellant-bank to . reconsider the claim of the respondent for compassionate appointment. In support of his contention, learned counsel for the appellant relied upon number of judgments: Umesh Kumar E Nagpal vs. State of Haryana And Ors., (1994) 4 SCC 138;

Steel Authority of India Ltd. vs. Madhusudan Das & Ors.,.

(2008) 15 SCC 560; Union of India & Anr. vs. B. Kishore,

(2011) 4 SCALE 298; State ofHaryana vs. Naresh Kumar F Bali, (1994) 4 SCC 448; State Bank of India & Ors. vs. Jaspal Kaur, (2007) 9 SCC 571 and State Bank of India & Anr. v. Raj Kumar, (2010) 11sec661.

5. Per contra, learned counsel forthe respondent contends that the order was passed by the appellant-bank without G considering the facts that i~ size of the respondent's family/ employment status of his family members and sources of their income, liabilities and expenses and the decision of the bank rejecting the case of the respondent for compassionate H appointment is arbitrary. Placing reliance upon Jaspal Kaur's case (supra) and other decisions, it vvas submitted that the

case of the respondent ought to have been considered in the A light of the Scheme 'Dying in Harness Scheme' which was then in vogue. The respondent averred that the payment of terminal benefits cannot be taken as a ground for rejecting employmE'.nt under the 'Dying in Harness Scheme'.

6 .. We have considered the rival contentions of both the parties and perused the impugned judgments and the material. on record.

7. Law with regard to employment on compassionate c ground for dependant of a decesed employee is well settled. In Sushma Gosain & Ors. vs. Union of India & Ors., (1989) 4 SCC 468, this Court held as thus:

"9. We consider that it must be stated unequivocally D that in all claims for 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 E earner in the family. Such appointment should; therefore, be provided imn:iediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment supernumerary post should be F created to accommodate the applicant."

The settled law which has been reiterated in various cases has been succinctly elucidated in MGB Gramin. Bank vs.

Chakrawarti Singh, (2014) 13 SCC 583, wherein it was G observed that compassionate appointment cannot be granted as of right and the application to be decided as expeditiously as possible and held as under:-

"6. Every appointment to public office must be made H by strictly adhering to the mandatory requirements

A of Articles 14 and 16 of the Constitution. An exception by providing employment on compassionate grounds has been carved out in order to remove the financial constraints on the

bereaved family, which has lost its breadearner.

Mere death of a government employee in harness does not entitle the family to claim compassionate employment. The competent authority has to examine the financial condition of the family of the deceased employee and it is only if it is satisfied that without providing 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. More so, the person claiming such appointment must possess required eligibility for the post. The consistent view that has been taken by the Court is that compassionate employment cannot be claimed as a matter of right, as it is not a vested right. The Court should not stretch the provision by liberal interpretation beyond permissible limits on humanitarian grounds. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such a case pending for years."

(Underlining added)

8. The above consistent view has been reiterated in various judgments by this Court in Umesh Kumar Nag pal vs.

State ofHaryana & Ors. (1994) 4 SCC 138, State of Manipur G vs. Md. Rajaodin, (2003) 7 SCC 511, Steel Authority of India Ltd. vs. Madhusudan Das & Ors., (2008) 15 SCC 560 and SanjayKumar vs. State of Bihar& Ors., (2000) 7SCC192.

9. Before adverting to the arguments of the learned counsel H for the parties, it is necessary to examine the scope of the

Scheme dated 8.05.1993 vide Circular No.154/1993 for A "compassionate appointment". The object of the Scheme is to help dependants of employees of Canara Bank who die or become totally and permanently disabled while in harness and to overcome the immediate financial difficulties on account of sudden stoppage c:if the main source of income. The B employment under the scheme will be considered only if there are indigent circumstances necessitating employment to one of the dependants and the deceased employee's service record is unblemished. Mere eligibility will not vest a right for claiming employment. As per para 3.1, application for C employment should be sought within 2Y2 years from the date of death of the employees. In para 3.2, it is stated that in case of the dependant of the deceased employee t6 be offered appointment is a minor, the bank may keep the offer of D appointment open till the minor attains the age of majority provided a request is made to the bank by the family of the deceased employee and the same may be considered subject to rules prevailing at the time of consideration.

10. During the pendency of the matter before the Division E Bench, Indian Banks Association (for short 'IBA') formulated a scheme based on the guidelines issued by the Government of India. As per the said Scheme, the banks have scrapped the scheme of compassionate appointment and introduced the F new scheme of ex-gratia payment in lieu of compassionate appointment by H.O. Circular No.35/2005 dated 14.02.2005.

According to appellant-Bank, as on date of consideration of the application for compassionate appointment, there was no policy to provide compassionate appointment under 'Dying in G Harness Scheme'. It is therefore the contention of the bank that the new scheme of 2005 applies to all pending

applications for appointment on compassionate ground, respondent's case could not be considered and as per the new Scheme, they are only entitled to ex-gratia payment in H

A lieu of compassionate appointment.

11. The main question falling for consideration is whether the Scheme passed in 2005 providing for ex-gratia payment or the Scheme then in vogue in 1993 providing for B compassionate appointment is applicable to the respondent.

Appellant-bank has placed reliance upon the judgment of this Court in Jaspal Kaur's case (supra) to contend that the respondent's case cannot be considered on the basis of 'Dying in Harness Scheme 1993' when the new Scheme of C 2005 providing for ex-gratia payment had been put in place.

In Jaspa/ Kaur's case (supra), Sukhbir lnder Singh employee of state Bank of India, Record Assistant (Cash & Accounts) passed away on 1.08.1999. Widow of the employee applied for compassionate appointment in State Bank of India on D 5.02.2000. On 7 .01.2002, the competent authority of the bank rejected the application of Jaspal Kaur in view of the Scheme vis-a-vis the financial position of the family. Against that decision of the competent authority, the respondent filed writ petition before the Punjab and Haryana High Court which has E directed to consider the case of Jaspal Kaur by applying the Scheme formulated on 4.08.2005 when her application was made in the year 2000. In that factual matrix, this Court has directed that dispute arising in the year 2000 cannot be decided F on the basis of a Scheme that was put in place much after the dispute. By perusal of the judgment in Jaspa/ Kaur's case, it is apparent that the judgment specifically states that claim of compassionate appointment under a scheme of a particular year cannot be decided in the light of the subsequent scheme G that came into force much after the claim. ·

12. The same principle was reiterated by this Court in the case of Bhawani Prasad Sonkar vs. Union of India & Ors.,

(2011) 4 sec 209, wherein it was held as under:-

H "15. Now, it is well settled that compassionate

employment is given solely on humanitarian A grounds with the sole object to provide immediate relief to the employee's family to tide over the sudden financial crisis and cannot be claimed as a matter of right. Appointment based solely on descent is inimical to our constitutional scheme, B and ordinarily public employment must be strictly on the basis of open invitation of applications and comparative merit, in consonance with Articles 14 and 16 of the Constitution of India. No other mode of appointment is permissible. Nevertheless, the C concept of compassionate appointment has been recognised as an exception to the general rule, carved out in the interest of justice, in certain exigencies, by way of a policy of an employer, which 0 partakes the character of the service rules. That being so, it needs little emphasis that the scheme or the policy. as the case may be, is binding both on the employer and the employee. Being an exception, the scheme has to be strictly construed E and confined only to the purpose it seeks to achieve.

17. In Umesh Kumar Nagpal v. State of Haryana, F

(1994) 4 sec 138, while emphasising that a compassionate appointment cannot be claimed as a matter of course or in posts above Classes Ill and IV, this Court had observed that: (SCC p. 140, para 2) G

"2 .... 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 H

post held by the deceased. What is further, 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. The posts in Classes Ill and IV are the lowest posts in nonmanual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency.

The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved viz. relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose.

It must be remembered in this connection that as against the destitute family of the deceased there are millions of other farftilies which are equally, if not more destitute. The exception to the .rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are "suddenly upturned."

20. Thus, while considering a claim for employment

on compassionate ground, the following factors A have to be borne in mind:

(1) Compassionate employment cannot be made in the absence of rules or regulations issued by the Government or a public authority. The request is to B be considered strictly in accordance with the governing scheme, and no discretion as such is left with any authority to make compassionate appointment dehors the scheme.

(i1) An application for compassionate employment must be preferred without undue delay and has to be considered within a reasonable period of time.

(iii) An appointment on compassionate ground is 0 to meet the sudden crisis occurring in the family on account of the death or medical invalidation of the breadwinner while in service. Therefore, compassionate employment cannot be granted as a matter of course by way of largesse irrespective E of the financial condition of the deceased/ incapacitated employee's family at the time of his death or incapacity, as the case may be.

(iv) Compassionate employment is permissible only F to one of the dependants of the deceased/ incapacitated employee viz. parents, spouse, son or daughter and not to all relatives, and such appointments should be only to the lowest category that is Class Ill and IV posts," G

(Underlining added)

13. Applying these principles to the case in hand, as discussed earlier, respondent's father did on 10.10,.1998 while he was serving as a clerk in the appellant-bank and the H

A respondent applied timely for compassionate appointment as per the scheme 'Dying in Harness Scheme' dated 8.05.1993 which was in force at that time. The appellant-bank rejected the respondent's claim on 30.06.1999 recording that there are no indigent circumstances for providing employment to the B respondent. Again on 7 .11.2001, the appellant-bank sought for particulars in connection with the issue of respondent's employment. In the light of the principles laid down in the above decisions, the cause of action to be considered for compassionate appointment arose when the Circular C No.154/1993 dated 8.05.1993 was in force. Thus, as per the ju'dgment referred in Jaspal Kaur's case, the claim cannot be decided as per 2005 Scheme providing for ex-gratia payment.

The Circular dated 14.2.2005 being an administrative or

0 executive order cannot have retrospective effect so as to take away the right accrued to the respondent as per circular of 1993.

14. It is also pertinent to note that 2005 Scheme providing only for ex-gratia payment in lieu of compassionate E appointment stands superseded by the Scheme of 2014 which . has revived the scheme providing for compassionate appointment. As on date, now the scheme in force is to provide compassionate appointment. Under these circumstances, the F appellant-bank is not justified in contending that the application for compassionate appointment of the respondent cannot be considered in view of passage of time.

15. Insofar as the contention of the appellant-bank that since the respondent's family is getting family pension and G also obtained the terminal benefits, in our view, is of no consequence in considering the application for compassionate appointment. Clause 3.2 of 1993 Scheme says that in case the dependant of deceased employee to be offered H appointment is_ a minor, the bank may keep the offer of

appointment open till the minor attains the age of majority. This A would indicate that granting of terminal benefits is of no consequence because even if terminal benefit is given, ifthe applicant is a minor, the bank would keep the appointment open till the minor attains the majority.

16. In Balbir Kaur & Anr. vs. Steel Authority of India Ltd. & Ors., (2000) 6 SCC 493, while dealing with the application made by the widow for employment on compassionate ground applicable.to the Steel Authority of India, contention raised was that since she is entitled to get the benefit under Family Benefit C

Scheme assuring monthly payment to the family of the deceased employee, the request for compassionate appointment cannot be acceded to. RejeQting that contention in paragraph (13), this Court held as under:- D "13 ..... But in our view this Family Benefit Scheme cannot in any way be equated with the benefit of compassionate appointments. The sudden jerk in the family by reason of the death of the breadearner can only be absorbed by some lump-sum amount E 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 breadearner and insecurity thereafter reigns and it is at that juncture if some lump-sum amount is F made available with a compassionate appointment, the grief-stricker. 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 G breadearner, but that would undoubtedly bring some solace to the situation."

Referring to Steel Authority of India Ltd. 's case, High Court

A has rightly held that the grant of family pension or payment of temlinal benefits cannot be treated as a substitute for providing employment assistance. The High Court also observed that it is not the case of the bank that the respondents' family is having any other income to negate their claim for appointment on B compassionate ground.

17. Considering the scope of the Scheme 'Dying in Harness Scheme 1993' then in force and the facts and circumstances of the case, the High Court rightly directed the C appellant-bank to reconsider the claim of the respondent for compassionate appointment in accordance with law and as per the Scheme (1993) then in existence. We do not find any reason warranting interference.

18. So far as the cases in Civil Appeal No.266/2008 and Civil Appeal No.267/2008 are concerned, they are similar and. those respondents are similarly placed and the appeals preferred by the bank are liable to be dismissed. The appellantbank is directed to consider the case of the respondents in E Civil Appeal Nos. 266/2008 and 267/2008.

19. In the result, all the appeals preferred by the appellantbank are dismissed and the appellant bank is directed to consider the case of the respondents for compassionate F appointment as per the Scheme which was in vogue at the •

time of death of the concerned employee. In the facts and circumstances of the case, we make no order as to costs.

Kalpana K. Tripathy Appeals dismissed.