2025 INSC 184
SUPREME COURT OF INDIA
(HON’BLE
DIPANKAR DATTA, J. AND HON’BL PRASHANT KUMAR MISHRA, JJ.)
CANARA BANK
Petitioner
VERSUS
AJITHKUMAR G.K
Respondent
Civil
Appeal No. 255 OF 2025 [ARISING OUT OF SLP (CIVIL) NO. 30532 /2019]-Decided on
11-02-2025
Service Law
(A)
Constitution of India, Articles 14, 16 and 142 – Scheme of employment on
compassionate grounds, 1993 – Scheme for Payment of Lumpsum Ex-gratia Amount in
Lieu of Employment on Compassionate Grounds, 2005 – Service Law - Compassionate
appointment –
Father of the respondent passed away on 20th December, 2001 while in service of
the appellant when scheme of 1993 was prevailing - Deceased left behind him his
widow, the respondent and three daughters as his surviving heirs - All the
daughters were married and settled - Only his spouse and son could count as
dependants - The daughters were not shown to be dependent on the deceased while
he was alive and in service - The respondent and his mother were residing in
their own house - That apart, the deceased was 4 (four) months away from
retirement on superannuation - Respondent’s father would have received a
pension amount of Rs. 6398/- and burdened to feed himself as well as his two
dependants, viz. his spouse and son, the amount of family pension initially
sanctioned, i.e., Rs. 4637.92 could not have, by any stretch of imagination, be
seen as insufficient or inadequate for feeding two mouths - It is also not in
dispute that the net terminal benefits in a sum of Rs. 3.09 lakh paid to the
respondent/his mother would have been the same amount which the deceased would
have received as terminal benefits after superannuation, had he been alive -
Thus, it is not a case where the death of the respondent’s father brought about
such dire consequence and/or disastrous outcome that the respondent and his
mother would have to cope with miserable effects which, as the respondent
urged, could be remedied only by offering an appointment on compassionate
ground - Order of the MD & CEO refusing to grant the prayer of the
respondent for compassionate appointment was unexceptionable and, therefore,
not liable to any interference in the exercise of writ jurisdiction – Invoke
powers under Article 142 of the Constitution held that interest of
justice would be sufficiently served if the appellant is directed to make a
lumpsum payment of Rs.2.5 lakh to the respondent within a period of 2 (two)
months from date and the proceedings be closed - Impugned judgment and order of
the Division Bench as well as that of the Single Bench stands set aside.
(Para 32, 46, 49 and
50)
(B)
Constitution of India, Articles 14 and 16 – Scheme of employment on
compassionate grounds, 1993 – Service Law - Compassionate appointment – Scheme of 1993
envisages assessment of the suitability of the claimant for compassionate
appointment - Clauses forming part of the policy/scheme for compassionate
appointment have to be followed to the letter - Without the respondent
having been subjected to a suitability test, the Division Bench plainly fell in
error in directing the respondent’s appointment in the category of clerk
relying on the decision in Canara Bank.
(Para 33)
(C)
Constitution of India, Articles 14 and 16 – Scheme of employment on
compassionate grounds, 1993 – Service Law - Compassionate appointment –
Age relaxation – Held that the
question of relaxation would arise only when the claimant satisfies the other
requirements of the scheme of 1993 for compassionate appointment - What seems
to be logical is that no dependant, who otherwise satisfies all criteria for
compassionate appointment including suitability, should be told off at the gate
solely on the ground of age-bar - If the age of the claimant is found to
be within the relaxable limit, discretion is available to be exercised in an
appropriate case - Relaxation of age is a step to be taken in the final stages
of the entire process and it would arise for consideration provided all other
conditions for appointment are satisfied - If in a given case, such as this,
that the family of the deceased is not found to be indigent, the first
threshold is not crossed and thereby, the process does not progress any further
- In such a case, it would be in idle formality to consider whether relaxation
of age should be granted.
(Para 35)
(D)
Constitution of India, Articles 14 and 16 – Scheme of employment on
compassionate grounds, 1993 – Service Law - Compassionate appointment – Lapse of time - Death of the respondent’s father, in
this case, occurred in December 2001 - Now, we are in 2025 - The respondent
cannot be blamed for the delay, since he was diligently pursuing his claim
before the appellant and thereafter before the High Court - Thus, irrespective
of how old the respondent is presently, his age cannot be determinative
for foreclosing his claim and bar a consideration of the same on merits.
(Para 28)
(E)
Constitution of India, Articles 14 and 16 – Scheme of employment on
compassionate grounds, 1993 – Service Law - Compassionate appointment – Financial condition of
family - The underlying idea behind
compassionate appointment in death-in-harness cases appears to be that the
premature and unexpected passing away of the employee, who was the only bread
earner for the family, leaves the family members in such penurious condition
that but for an appointment on compassionate ground, they may not survive -
There cannot be a straitjacket formula applicable uniformly to all cases of
employees dying-in-harness which would warrant appointment on compassionate
grounds - Each case has its own peculiar features and is required to be dealt
with bearing in mind the financial condition of the family - It is only in
“hand-to-mouth” cases that a claim for compassionate appointment ought to be
considered and granted, if at all other conditions are satisfied - Such
“hand-to-mouth” cases would include cases where the family of the deceased is
‘below poverty line’ and struggling to pay basic expenses such as food, rent,
utilities, etc., arising out of lack of any steady source of sustenance - This
has to be distinguished from a mere fall in standard of life arising out of the
death of the bread earner - Thus, examination of the financial condition to
ascertain whether the respondent and his mother were left in utter financial
distress because of the death of the bread earner is not something that can be
loosely brushed aside.
(Para 29 and 31)
(F) Constitution
of India, Articles 14 and 16 – Scheme of employment on compassionate grounds,
1993 – Service Law - Compassionate appointment – Financial condition of family -
Deceased left behind him his widow, the respondent and three daughters as his
surviving heirs - All the daughters were married and settled - Only his spouse
and son could count as dependants - The daughters were not shown to be
dependent on the deceased while he was alive and in service - The respondent
and his mother were residing in their own house - That apart, the deceased was
4 (four) months away from retirement on superannuation - Respondent’s father
would have received a pension amount of Rs. 6398/- and burdened to feed himself
as well as his two dependants, viz. his spouse and son, the amount of family
pension initially sanctioned, i.e., Rs. 4637.92 could not have, by any stretch
of imagination, be seen as insufficient or inadequate for feeding two mouths -
It is also not in dispute that the net terminal benefits in a sum of Rs. 3.09
lakh paid to the respondent/his mother would have been the same amount which
the deceased would have received as terminal benefits after superannuation, had
he been alive - Thus, it is not a case where the death of the respondent’s
father brought about such dire consequence and/or disastrous outcome that the
respondent and his mother would have to cope with miserable effects which, as
the respondent urged, could be remedied only by offering an appointment on
compassionate ground - Order of the MD & CEO refusing to grant the prayer
of the respondent for compassionate appointment was unexceptionable and,
therefore, not liable to any interference in the exercise of writ jurisdiction
– Held that interest of justice would be sufficiently served if the appellant
is directed to make a lumpsum payment of Rs.2.5 lakh to the respondent within a
period of 2 (two) months from date and the proceedings be closed - Impugned
judgment and order of the Division Bench as well as that of the Single Bench
stands set aside.(Para 32, 46, 49 and 50)
(G)
Constitution of India, Articles 14 and 16 – Scheme for Payment of Lumpsum
Ex-gratia Amount in Lieu of Employment on Compassionate Grounds, 2005 – Service
Law - Compassionate appointment – Father of the respondent passed away on 20th
December, 2001 while in service of the appellant when scheme of 1993 was
prevailing - Which rule/policy/scheme would be applicable for consideration of
an application for compassionate appointment, i.e., the rule/policy/scheme
prevailing on the date of death, or the date of consideration of the application?
- decisions in N.C. Santhosh (supra) and Amit
Shrivas (supra), rendered by three-Judge benches, are clearly at variance
on the point as to which of the policies would be applicable to decide an
application for compassionate appointment - the policy prevailing as on the
date of death of the deceased employee or the one prevailing on the date of
consideration of the application for compassionate appointment - The reference
made by State Bank of India v. Sheo Shankar Tewari is yet to be decided by
the larger bench.
(Para 12, 20 and 21)
(H)
Constitution of India, Articles 14 and 16 – Service Law - Compassionate
appointment -
Certain well-settled principles, which have crystallized through precedents
into a rule of law enumerated.
(Para 11)
JUDGMENT
Dipankar Datta, J.:-
THE
APPEAL
1.
Canara Bank[appellant] is in appeal,
by special leave, aggrieved by the judgment and order dated 4th November, 2019[impugned order] of a Division Bench of
the High Court of Kerala at Ernakulam[High
Court[ dismissing an intra-court appeal that it had carried from the
judgment and order dated 9th June, 2016 of a Single Bench allowing the writ
petition of Ajithkumar G.K. [respondent].
RESUME
OF FACTS
2.
The facts leading to this appeal are not disputed. However, a brief resume is
considered necessary to decide the appeal.
a. Father of the
respondent passed away on 20th December, 2001 while in service of the
appellant. He had 4 (four) months service left prior to superannuation.
b. A scheme for
appointment on compassionate ground, formulated by the appellant and contained
in Circular No. 154/93 dated 8th May, 1993[scheme
of 1993], was in force when such death occurred. Within a month of his
father’s death, the respondent applied on 15th January, 2002 seeking
appointment on compassionate ground.
c. On 30th October,
2002, the respondent’s plea was spurned by the Deputy General Manager of the
appellant. The reason assigned were twofold: (i) mother of the respondent is in
receipt of family pension of Rs. 4367.92p and hence the financial position of
the family does not warrant an appointment on compassionate ground; and (ii)
the respondent was overaged for the post of “Prob. Peon”.
d. Incidentally, the
respondent was in excess of 26 (twenty-six) years of age and in terms of the
scheme of 1993, the maximum age limit for appointment on a clerical post as
well as in the sub-staff category was 26 (twenty-six) years. The scheme,
however, provided for relaxation of the upper age limit up to a maximum limit
of five years. For members of the scheduled caste community, ex-servicemen
and physically disabled candidates, special relaxation was also provided. The
respondent, though over-aged by a few months, was not considered by the
appellant for such relaxation.
e. Nevertheless, the
respondent on 7th January, 2003, prayed for reconsideration of his prayer.
f. The Assistant
General Manager of the appellant conveyed to the respondent on 20th January,
2003 that the financial position of the family of the deceased employee had
previously been examined in depth by the competent authority and there being no
fresh ground for reconsideration, he regretted inability to reconsider the
prayer. g. This was followed by a request dated 4th February, 2003 of the
respondent’s mother seeking reconsideration of the application submitted by the
respondent for protecting the poor family of the deceased employee who had
served the appellant for more than 24 (twenty-four) years.
h. By an order dated
18th February, 2003, the Divisional Manager of the appellant once again
expressed inability to reconsider the application of the respondent’s mother.
i. The respondent,
finding no other option, invoked the writ jurisdiction of the High Court of Kerela
by presenting a petition 6 under Article 226 of the Constitution.
j. During the pendency of the aforesaid writ
petition, the appellant issued Circular No. 35/2005 dated 14th February, 2005[W.P. (C) No. 38363/2003 (P).]
introducing the “SCHEME FOR PAYMENT OF LUMPSUM EX-GRATIA AMOUNT IN LIEU OF
EMPLOYMENT ON COMPASSIONATE GROUNDS”. The said scheme laid down provisions for
coverage of family members of deceased employees who would be entitled to lump
sum ex-gratia payment. Most importantly, the circular dated 14th February, 2005
discontinued the policy of compassionate appointment under the scheme of 1993.
k. As is the case with
high courts all over the country having immense burden of work but number of
Judges fewer than the sanctioned strength, and for reasons beyond its control,
it took the High Court more than a decade to decide the writ petition.
l. Vide a judgment and
order dated 16th June, 2015, the writ petition stood allowed. The order passed
by the Deputy General Manager dated 30th October, 2002 refusing the respondent
appointment on compassionate ground was held by the High Court to be not at all
in accordance with the scheme of 1993 launched by the appellant; further that,
while reconsidering the prayer of the respondent and his mother, the appellant
did not advert properly to the laudable object of the scheme, especially its
power to relax the age as provided under paragraph 5.1 thereof; also that, the
orders impugned were liable to be quashed. Consequently, the appellant was
directed to reconsider the issues raised by the respondent taking into account
the scheme of 1993 scheme of 2005 as well as the principles laid down
in the decisions of this Court in Canara Bank v M Mahesh Kumar[(2015) 7 SCC 412] and State
Bank of India v Somveer Singh[(2007) 4
SCC 778] as well as any other relevant decision that is pointed out
by the respondent. Accordingly, upon setting aside of the orders impugned, the
appellant was directed to take a decision in the matter, as directed, within 45
(forty-five) days.
m. In furtherance of
the aforesaid judgment and order, the Managing Director & Chief Executive
Officer[MD & CEO] of the
appellant re-examined the claim of the respondent for compassionate appointment
and once again declined favourable consideration of the claim. Relevant
portions from the order dated 8th September, 2015 passed by the MD & CEO
read as follows:
“In
the particular case of Shri Ajith Kumar G K, the following facts are
undisputed:
• The ex-employee died
with a remaining service of just over 4 months only and the dependent family
was eligible for full terminal benefits (gross Rs.3.23 lacs and net Rs.3.09
lacs after recovery of outstanding liabilities) and a family pension of
Rs.4637.92 during 2002.
• He had then left
behind his spouse, one unmarried son.
• The 3 daughters were
married and settled.
• The son was aged 26
years and 8 months as on the date of application.
• The family of the
deceased was drawing pension under the Canara Bank Pension Regulations.
The primary and the
most basic issue to be examined therefore is whether the dependent of the
deceased employee was facing any immediate financial difficulties or penury on
account of the sudden death of the employee.
In the present case,
there were no minor dependent children or unmarried daughter in the family for
whom future financial assistance was required. The 3 daughters of the deceased
employee were already married arid settled at the time of his demise. The
other deponents are his spouse and his son Sri Ajith Kumar who was then aged 26
years & 8 months. The family was residing in their own house. The last
drawn net salary of Sri V C Gopalakrishna Pillai as on 2001 was Rs. 9,772/- and
had he survived for another 4 months he would have otherwise supported his
family with the pension he would have received from the Bank (in normal course
approximately Rs. 6,398/- only). After the demise of the employee, his spouse
Smt Omana Amma was sanctioned with a family pension of Rs.4637.92 then and
which is presently Rs.5825/- p.m. That apart Net terminal benefits to the
extent of Rs.3.09 lacs (after closure of liability of Rs.13,942/-) as on 2002
which were available to dependents.
Taking all the factors
into consideration, the family circumstances prevailing then I am of the
considered view that there never existed any indigent circumstances of the
dependent family of Late Sri V C Gopalakrishna Pillai to say that the family
was in such crisis which would not have been able to overcome without job being
offered under Compassionate Appointment.
For the reasons given
above I come to the conclusion that the dependent family was not facing any
acute financial distress or penury then which warrants the exercise of the
discretionary powers to extend the benefit of compassionate appointment in this
case.
The question of
relaxation of age arises only if the applicant is eligible for compassionate
appointment. Since I have found, on the basis of the judgment of the Hon’ble
Supreme Court, based on which the Scheme has been framed that the applicant is
not entitled for compassionate appointment. I am not considering the question
of relaxation of age as per the Scheme.
As such considering
the matter in its entirety and also financial and familial conditions present
then, the request, for Compassionate Appointment to the dependents of Late V C
Gopalakrishna Pillai (22841), Ex-clerk, Trikkovilvattom Branch is not
considered favourably.
The application and
representation of Sri Ajith Kumar G K for compassionate appointment is
therefore rejected.”
n. Denial of
appointment, once again, left the respondent crestfallen. He, thus, approached
the High Court by presenting a writ petition[W.P.
(C) No. 16592/2016] initiating the second round of litigation which has now
reached this Court. For the reasons assigned in the judgment and order dated 9
th June, 2016, a learned judge of the High Court allowed the writ
petition.
The order impugned
passed by the Managing Director was set aside. A direction was issued to
consider the respondent for appointment under the scheme of 1993 in the
sub-staff cadre within 2 (two) months. It was also directed that the appellant
shall, in addition, pay a sum of Rs. 5 (five) lakh to the respondent as
compensation for the reluctance shown in giving compassionate appointment in
time.
o. The appellant,
feeling thoroughly dissatisfied, preferred an intra-court appeal[WA 1364/2016]. A Division Bench of the
High Court by the impugned judgment and order dismissed the appeal with
exemplary cost of Rs. 5 (five) lakh, in addition to the compensation directed
to be paid by the Single Judge in the judgment and order under challenge. The
Division Bench expressing astonishment at the manner in which the appellant and
its officers had dealt with the claim of the respondent for compassionate
appointment, directed appointment of the respondent in the sub-staff category
in any of the branches of the appellant within a month.
p. The reasons for the
above directions of the Division Bench are captured in paragraphs 17 and 18,
reading as follows:
“17. We do not think,
either of the judgments placed before us by the learned Senior Counsel for the
appellant-Bank commend us to cause interference to the judgment of the learned
Single Judge. As noticed by the learned Single Judge, M. Mahesh Kumar and Priya
Jayarajan have settled the issue under the very same Scheme of the identical
Bank, which was the appellant therein. In M. Mahesh Kumar it was categorically
held that grant of family pension and payment of terminal benefits cannot be
treated as a substitute for providing compassionate appointment. The Hon’ble
Supreme Court having held so in 2015, in the case of the very same appellant,
as rightly found by the learned Single Judge, it was audacious on the part of
the Bank to have passed an order in conflict with the decision of the
Hon’ble Supreme Court by Exhibit P8 dated 08.09.2015 when the judgment of the
Hon’ble Supreme Court was already delivered on 15.05.2015.
18. Not only did the
Bank pass an order in conflict with the decision in its own case, but filed an
appeal from the order dismissing the writ petition. We notice that the learned
Single Judge had granted Rs.5 lakhs as exemplary costs for keeping the bereaved
family of the deceased, wallowing in a penurious state, that too against the
very provisions of the Scheme. We also take note of the fact that the age
relaxation directed to be considered in the earlier writ petition was brushed
aside by the Bank. That was the relevant and only consideration which should
have been made on the totality of the circumstances, especially when the son
had exceeded the maximum age only by eight months. The receipt of family
pension, which was found to be not a relevant consideration was also projected
as a reason for denying the appointment. We reiterate that a reading of the
entire Scheme, especially the special provisions enabling appointment of one
dependent even if another is employed, persuades us to find the rejection of
the instant claim for reason only of a family pension and retirement benefit of
Rs.3.09 lakhs to be against the spirit and tenor of the Scheme.”
q. Canara Bank is, thus, in appeal against the said
judgment and order.
CONTENTIONS
OF THE PARTIES
3.
According to learned counsel for the appellant:
a. Reliance placed by
the Single Judge and the Division Bench on paragraph 19 of the ruling
in Canara Bank (supra) was misplaced. First, because the matter at
hand differs significantly from the facts and circumstances of that particular
case and secondly, the contents of paragraph 19 were merely observations and do
not constitute a binding precedent. The question of whether terminal benefits
should be included in determining the financial status of the deceased
employee's family was neither raised nor resolved in the
said decision. Even otherwise, the decision in Canara
Bank (supra) has been referred to a larger bench for further
consideration.
b. Additionally, the
decisions of the Single Judge and the Division Bench are inconsistent with
legal principles established by this Court in a long line of decisions.
c. In matters
concerning appointment on compassionate grounds, it is essential to account for
the terminal benefits as well as the family pension being provided to the
family of the deceased employee while assessing the family's overall financial
condition.
d. Question of
relaxation of age arises only if the applicant is otherwise eligible for
compassionate appointment subject to he being found suitable for any of the two
categories of posts. In the present case, it was found that the respondent was
not eligible for the appointment sought on account of non-existence of indigent
circumstances and hence, the question of age relaxation or testing his suitability,
which are the further steps in the process, did not arise to be undertaken.
The High Court,
therefore, applied wrong tests to allow the claim of the respondent.
4.
Per contra, learned counsel for the respondent contended that:
a. The scheme of 1993
did not contain any provision to the effect that the financial condition of the
applicant’s family is to be considered before giving employment on
compassionate grounds. Paragraph 19 of the decision of this Court
in Canara Bank (supra) was referred to in support of the contention
that it was not open to the appellant to raise the bogey of financial
condition of the respondent after the death of his father did not reflect
indigent circumstances. Hence, rejection of the respondent’s claim solely
on the ground that the family is in receipt of pension and other terminal
benefits is in contravention of the decision in Canara Bank (supra),
which is binding on the appellant.
b. The appellant’s
contention of the respondent being ineligible for employment on compassionate
grounds on the ground of age-bar is untenable. The appellant had not raised an
objection to the overage of the respondent in the letters and counter
affidavits except in the letter dated 30th October, 2002 rejecting the initial
application of the respondent dated 15th January, 2002. Even otherwise, the
issue of overage could not have been raised later having regard to quashing of
the decision contained in the letter dated 30th October, 2002 by the order of
the High Court dated 16th June, 2015 having regard to the doctrine of res
judicata.
c. Moreover, the
appellant had the power to relax the age and in the present case without
considering such power of relaxation, the appellant rejected the application on
account of receipt of terminal benefits and family pension illegally and in an
arbitrary manner.
d. That apart, there
is nothing on record to suggest that the appellant made any bona fide
assessment of the financial condition of the family of the deceased. It could
be inferred from the submissions of the appellant that they reached the
conclusion that the financial condition of the family is sound, only on
the grounds that the family received the family pension and other terminal
benefits without, however appreciating the ratio of the decision in Canara
Bank (supra) where receipt of terminal benefits was held to be of no
consequence at all. Finally, it was submitted that substantial time has elapsed
since the death of the respondent’s father and that the respondent having been
made to unnecessarily wait for long, the present appeal deserves dismissal with
costs to the respondent.
5.
Precedents on the point of compassionate appointment have been cited before us
by both parties. Those, along with other precedents, do need due consideration
and we intend to do that as the discussion would progress.
ISSUE
6.
The core issue arising for decision on this appeal is, whether the Division
Bench of the High Court was unjustified in not allowing the intra-court appeal
of the appellant and in upholding the judgment of the Single Judge while
directing the respondent’s appointment at a point of time when he was past 44
(forty-four) years of age.
7.
There are also certain sub-issues which would fall for our attention. We
propose to examine the same too, at a later stage, after noting the salient
features of the scheme of 1993 and the multiple judicial precedents governing
the field of compassionate appointment.
THE SCHEME
8.
The scheme of 1993 was introduced by the appellant in supersession of all
earlier circulars, instructions and guidelines. The objective of the scheme
reads as follows:
“OBJECTIVES: The
Scheme of employment on compassionate grounds (hereinafter called ‘Scheme’) has
been evolved to help dependents, of our employees who die or become totally and
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 one of the dependents and the
deceased employees service record is unblemished. Mere eligibility will not
vest a right for claiming employment. The Bank reserves the right to reject the
application received under this ‘Scheme’.” Other notable features of the scheme
of 1993 are:
“3. PERIOD BY WHICH
EMPLOYMENT SHOULD BE SOUGHT
3.1 Application for
employment should be sought within 2 and ½ years from the date of death of the
employee.
3.2 In case the
dependent of deceased employee to be offered appointment is a minor, the Bank
may keep the offer of 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.
5. AGE NORMS:
a. IN CASE OF
WIDOW/WIDOWER Minimum – 18 years.
Maximum – No specific
upper age limit but shall be below the age of superannuation.
b. IN CASE OF OTHERS
Minimum – 18 years.
Maximum – 26 years for
both Clerical post and Sub-staff category.
Upper age limit is
relaxable as per norms in case of SC/ST/EXSM/PH candidates as follows:
SC/ST – 5 years.
EXSM – 3 years’
service + service in Armed Forces. PH – 10 years.
5.1 Where no dependent
of the deceased employee within the prescribed age limit is available for
employment, the Bank may at its discretion relax the upper age limit upto a
maximum limit of 5 years. In case of dependents belonging to SC/ST category,
the existing concession for SC/ST for the upper age limit will continue to
apply but in any case, it shall not exceed ten years i.e. 5 years for being
SC/ST candidate and another 5 years under discretionary powers, provided there
are no other dependents available within the prescribed age limit.”
9.
The procedure for making applications is provided in paragraph 11 requiring
applications to be made in the formats furnished in Annexures ‘I' to ‘III’,
whereas paragraph ‘12’ enjoined that the offer of employment would be
restricted only to one person.
JUDICIAL
PRECEDENTS ON THE ISSUE OF COMPASSIONATE APPOINTMENT
10.
The policy to appoint a dependant family member of an employee who has
died-in-harness or has been medically rendered unfit to perform further job,
thereby leaving the family in utter penury, is not of too distant an origin.
Going by law reports, the policy seems to have originated during the seventies
of the last century and gained momentum in the following decades with this
Court laying down guidelines from time to time for grant of compassionate
appointment. The rationale for such appointment has been explained
in Haryana State Electricity Board v. Hakim Singh[(1997) 8 SCC 85] in the following words:
“8. The rule of appointments
to public service is that they should be on merits and through open invitation.
It is the normal route through which one can get into a public employment.
However, as every rule can have exceptions, there are a few exceptions to the
said rule also which have been evolved to meet certain contingencies. As per
one such exception relief is provided to the bereaved family of a deceased
employee by accommodating one of his dependants in a vacancy. The object is to
give succour to the family which has been suddenly plunged into penury due to
the untimely death of its sole breadwinner. This Court has observed time and
again that the object of providing such ameliorating relief should not be taken
as opening an alternative mode of recruitment to public employment.”
11.
Decisions of this Court on the contours of appointment on compassionate ground
are legion and it would be apt for us to consider certain well-settled
principles, which have crystallized through precedents into a rule of law. They
are (not in sequential but contextual order):
a) Appointment on
compassionate ground, which is offered on humanitarian grounds, is an exception
to the rule of equality in the matter of public employment [see General
Manager, State Bank of India v Anju Jain[(2008)
8 SCC 475] ].
b) Compassionate
appointment cannot be made in the absence of rules or instructions
[see Haryana State Electricity Board v. Krishna Devi[(2002) 10 SCC 246] ].
c) Compassionate
appointment is ordinarily offered in two contingencies carved out as exceptions
to the general rule, viz. to meet the sudden crisis occurring in a family
either on account of death or of medical invalidation of the breadwinner while
in service [see V. Sivamurthy v. Union of India[(2008) 13 SCC 730]].
d) The whole object of
granting compassionate employment by an employer being intended to enable the
family members of a deceased or an incapacitated employee to tide over the
sudden financial crisis, appointments on compassionate ground should be made
immediately to redeem the family in distress [see Sushma Gosain v. Union
of India [(1989) 4 SCC 468] ].
e) Since rules relating
to compassionate appointment permit a side-door entry, the same have to be
given strict interpretation [see Uttaranchal Jal Sansthan v. Laxmi Devi[(2009) 11 SCC 453] ].
f) Compassionate
appointment is a concession and not a right and the criteria laid down
in the Rules must be satisfied by all aspirants [see SAIL v. Madhusudan
Das[(2008) 15 SCC 560] ].
g) None can claim
compassionate appointment by way of inheritance [see State of Chattisgarh v.
Dhirjo Kumar Sengar[(2009) 13 SCC 600]].
h) Appointment based
solely on descent is inimical to our constitutional scheme, and being an
exception, the scheme has to be strictly construed and confined only to
the purpose it seeks to achieve [see Bhawani Prasad Sonkar v. Union of
India[(2011) 4 SCC 209] ].
i) None can claim
compassionate appointment, on the occurrence of death/medical incapacitation of
the concerned employee (the sole bread earner of the family), as if it were a
vested right, and any appointment without considering the financial condition
of the family of the deceased is legally impermissible [see Union of India
v. Amrita Sinha[(2021) 20 SCC 695] ].
j) An application for
compassionate appointment has to be made immediately upon death/incapacitation
and in any case within a reasonable period thereof or else a presumption could
be drawn that the family of the deceased/incapacitated employee is not in
immediate need of financial assistance. Such appointment not being a vested
right, the right to apply cannot be exercised at any time in future and it
cannot be offered whatever the lapse of time and after the crisis is over
[see Eastern Coalfields Ltd. v. Anil Badyakar[(2009) 13 SCC 112]].
k) The object of
compassionate employment is not to give a member of a family of the deceased
employee a post much less a post for post held by the deceased. Offering
compassionate employment as a matter of course irrespective of the financial
condition of the family of the deceased and making compassionate
appointments in posts above Class III and IV is legally impermissible
[see Umesh Kumar Nagpal v. State of Haryana[(1994) 4 SCC 138] ].
l) Indigence of the
dependents of the deceased employee is the first precondition to bring the case
under the scheme of compassionate appointment. If the element of indigence and
the need to provide immediate assistance for relief from financial destitution
is taken away from compassionate appointment, it would turn out to be a
reservation in favour of the dependents of the employee who died while in
service which would directly be in conflict with the ideal of equality
guaranteed under Articles 14 and 16 of the Constitution
[see Union of India v. B. Kishore
[(2011) 13 SCC 131] ].
m) The idea of
compassionate appointment is not to provide for endless compassion
[see I.G. (Karmik) v. Prahalad Mani Tripathi [(2007) 6 SCC 162] ].
n) Satisfaction that
the family members have been facing financial distress and that an appointment
on compassionate ground may assist them to tide over such distress is not
enough; the dependent must fulfil the eligibility criteria for such appointment
[see State of Gujarat v. Arvindkumar T. Tiwari [(2012) 9 SCC 545]].
o) There cannot be
reservation of a vacancy till such time as the applicant becomes a major after
a number of years, unless there are some specific provisions [see Sanjay
Kumar v. State of Bihar[(2000) 7 SCC 192]].
p) Grant of family
pension or payment of terminal benefits cannot be treated as substitute for
providing employment assistance. Also, it is only in rare cases and that too if
provided by the scheme for compassionate appointment and not otherwise, that a
dependent who was a minor on the date of death/incapacitation, can be
considered for appointment upon attaining majority [see Canara
Bank (supra)].
q) An appointment on
compassionate ground made many years after the death/incapacitation of the
employee or without due consideration of the financial resources available to
the dependent of the deceased/incapacitated employee would be directly in
conflict with Articles 14 and 16 of the Constitution
[see National Institute of Technology v. Niraj Kumar Singh[(2007) 2 SCC 481] ].
r) Dependents if
gainfully employed cannot be considered [see Haryana Public Service
Commission v. Harinder Singh[(1998) 5 SCC
452]].
s) The retiral
benefits received by the heirs of the deceased employee are to be taken into
consideration to determine if the family of the deceased is left in
penury. The court cannot dilute the criterion of penury to one of “not very
well-to-do”. [see General Manager (D and PB) v. Kunti Tiwary [(2004) 7 SCC 271] ].
t) Financial condition
of the family of the deceased employee, allegedly in distress or penury, has to
be evaluated or else the object of the scheme would stand defeated inasmuch as
in such an eventuality, any and every dependent of an employee dying-in-
harness would claim employment as if public employment is heritable
[see Union of India v. Shashank Goswami [(2012) 11 SCC 307] Union Bank of India v. M. T.
Latheesh[(2006) 7 SCC 350] , National
Hydroelectric Power Corporation v. Nank Chand[(2004) 12 SCC 487] and Punjab National Bank v.
Ashwini Kumar Taneja[(2004) 7 SCC 265]].
u) The terminal
benefits, investments, monthly family income including the family pension and
income of family from other sources, viz. agricultural land were rightly taken
into consideration by the authority to decide whether the family is living in
penury. [see Somvir Singh (supra)].
v) The benefits
received by widow of deceased employee under Family Benefit Scheme assuring
monthly payment cannot stand in her way for compassionate appointment. Family
Benefit Scheme cannot beequated with benefits of compassionate appointment.
[see Balbir Kaur v. SAIL[(2000) 6 SCC
493]]
w) The fixation of an
income slab is, in fact, a measure which dilutes the element of arbitrariness.
While, undoubtedly, the facts of each individual case have to be borne in mind
in taking a decision, the fixation of an income slab subserves the purpose of
bringing objectivity and uniformity in the process of decision
making. [see State of H.P. v. Shashi Kumar[(2019) 3 SCC 653] ].
x) Courts cannot
confer benediction impelled by sympathetic consideration [see Life
Insurance Corporation of India v. Asha Ramchandra Ambekar[(1994) 2 SCC 718] ].
y) Courts cannot allow
compassionate appointment dehors the statutory regulations/instructions.
Hardship of the candidate does not entitle him to appointment dehors such
regulations/instructions [see SBI v. Jaspal Kaur[(2007) 9 SCC 571] ].
z) An employer cannot
be compelled to make an appointment on compassionate ground contrary to its
policy [see Kendriya Vidyalaya Sangathan v. Dharmendra Sharma[(2007) 8 SCC 148]].
It would be of some
relevance to mention here that all the decisions referred to
above are by coordinate benches of two Judges. A GREY AREA
12.
Before moving on to decide the issues emerging for our decision, we may briefly
refer to an area which, till a few years back, was grey and continues to be so.
It is on the question as to which rule/policy/scheme would be applicable for
consideration of an application for compassionate appointment, i.e., the
rule/policy/scheme prevailing on the date of death, or the date of
consideration of the application. Divergent views have been taken by coordinate
benches of this Court and some such decisions are noted hereunder:
a. In Abhishek
Kumar v. State of Haryana[(2006) 12 SCC
44], it was held that since the appellant had sought for appointment on
compassionate grounds at a point of time when the 2003 Rules were not in
existence, therefore, his case was required to be considered in terms of the
Rules which were in existence in the year 2001.
b. In Canara
Bank (supra) too, it was held that claim for compassionate appointment
under a scheme of a particular year cannot be decided based on a subsequent
scheme that came into force much after the claim.
c. However, the
view expressed in SBI v. Raj Kumar[(2010)
11 SCC 661] and MGB Gramin Bank v. Chakrawarti Singh[(2014) 13 SCC 583] is that
there is no vested right to have the matter considered under the former scheme
and the governing scheme would be one which was in force when the applications
came up for consideration.
13. Raj
Kumar (supra) and Chakrawarti Singh (supra) did not have the
occasion to notice Abhishek Kumar (supra). However, Canara
Bank (supra) did notice Raj Kumar (supra) and Chakrawarti
Singh (supra) but struck discordant notes therewith. The decision in
Jaspal Kaur (supra) was relied on by the coordinate bench in Canara
Bank (supra) to hold that:
“17. … the cause of
action to be considered for compassionate appointment arose when Circular No.
154 of 1993 dated 8-5-1993 was in force. Thus, as per the judgment referred in
Jaspal Kaur 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
executive order cannot have retrospective effect so as to take away the right
accrued to the respondent as per Circular of 1993 …”.
14.
Noticing the divergent views, as above, another coordinate bench referred the
matter to a larger bench in State Bank of India v. Sheo Shankar Tewari[(2019) 5 SCC 600] .
15.
Close on the heels of the reference made in Sheo Shankar
Tewari (supra), a three-Judge Bench of this Court held in N.C.
Santhosh v. State of Karnataka[(2020) 7
SCC 617] that for consideration of a claim
for compassionate appointment, the norms prevailing on the date the
application is considered should be the basis for consideration. Paragraph 19
of the decision is the relevant paragraph where the dictum is to be found.
16. N.C.
Santhosh (supra) does seem to have impliedly overruled Canara
Bank (supra) by holding that the norms, prevailing on the date of
consideration of the application should be the basis for consideration and not
the norms as applicable on the date of death.
17.
One would have thought that the issue attained finality with the decision
in N.C. Santhosh (supra), being the decision of a larger bench of
this Court. However, the controversy seems to have re-emerged with
subsequent decisions of this Court being rendered which are in line
with Abhishek Kumar (supra) and Canara Bank (supra) and
contrary to Raj Kumar (supra), Chakrawarti Singh (supra)
and N.C. Santhosh (supra).
18.
Within 6 (six) months of the ruling in N.C. Santhosh (supra), came
the decision of another bench of three Judges in State of Madhya Pradesh
v. Amit Shrivas[(2020) 10 SCC 496] where
it was held that:
“16. It is trite to
say that there cannot be any inherent right to compassionate appointment but
rather, it is a right based on certain criteria, especially to provide succour
to a needy family. This has to be in terms of the applicable policy as existing
on the date of demise, unless a subsequent policy is made applicable
retrospectively. …”
19.
We place on record that the decision in Amit Shrivas (supra) refers
to an earlier decision in State of Gujarat v. Arvind T. Tiwari[(2012) 9 SCC 545] in
paragraph 16, extracted above, as if such decision lays down the law that a
subsequent policy could be made applicable retrospectively. While we have
been unable to trace any such law in Arvind T. Tiwari (supra), this
is what we find in paragraph 18 of the said decision:
“18. Thus, the
question framed by this Court with respect to whether the application for
compassionate employment is to be considered as per existing rules, or under
the rules as existing on the date of death of the employee, is not required to
be considered.” It is indeed debatable whether a policy for compassionate
appointment, which is in the nature of an executive order, can have
retrospective application.
20.
Be that as it may, soon after the decision in Amit Shrivas (supra),
there have been two decisions of coordinate benches of two-Judges
in Indian Bank v. Promila[(2020) 2
SCC 729] and State of Madhya Pradesh v. Ashish Awasthi[(2022) 2 SCC 157]. The latter,
upon considering the decisions in Amit Shrivas (supra)
and Promila (supra), expressed the view in paragraph 5 thus:
“5. As per the settled
proposition of law laid down by this Court for appointment on
compassionate ground, the policy prevalent at the time of death of the deceased
employee only is required to be considered and not the subsequent policy.”
21.
The decisions in N.C. Santhosh (supra) and Amit
Shrivas (supra), rendered by three-Judge benches, are clearly at variance
on the point as to which of the policies would be applicable to decide an
application for compassionate appointment - the policy prevailing as on the
date of death of the deceased employee or the one prevailing on the date of
consideration of the application for compassionate appointment.
22.
The reference made by Sheo Shankar Tewari (supra) is yet to be
decided by the larger bench; hence, we have considered it appropriate to refer
to the decisions rendered subsequently so that an informed and authoritative
decision is made available on this tricky issue or, if at all the necessity
arises, to make an appropriate reference to a still larger bench having regard
to the conflicting views expressed by coordinate benches of three-Judges and a
host of divergent views of benches of two-Judges.
23. Since
Canara Bank (supra) has been referred to a larger bench and the larger
bench is yet to give its decision, learned counsel for the appellant was heard
to submit that we ought to await such decision. However, we can brook no
further delay having regard to the lapse of time since the judgment was
reserved on this appeal, because the decision of the larger bench is not in
sight and most importantly, the respondent is waiting for more than two decades
not knowing what destiny has in store for him.
ANALYSIS
AND DECISION
24.
We have noticed the core issue arising for decision as well as the guiding
legal principles for appointment on compassionate ground hereinabove. As
observed earlier, decision on the core issue would also require us to answer
certain sub-issues. We propose to answer them too in the process.
25.
The first sub-issue is in relation to the lapse of time since the respondent’s
father passed away. It has been in excess of two decades. It does not require
anyone to put on a magnifying glass here to assess the time that has been taken
for the application of the respondent for compassionate appointment to be
finally decided. The parties have reached the third tier in the second round.
One of the foremost factors for appointment on compassionate ground is that the
same should be offered at the earliest. Unless appointment is made soon after
the need to mitigate hardship arises, tiding over the immediate financial
crisis owing to (i) sudden premature and untimely death of the deceased
employee or (ii) medical incapacitation resulting in the employee’s unfitness
to continue in service, - for which benevolence is shown by offering an
appointment - may not exist and thereby the very object of such appointment
could stand frustrated.
26.
More often than not, spurned claims for compassionate appointment reach the
high courts or even this Court after consuming substantial time. The ordinary
rule of litigation is that right to relief should be decided by reference to
the date on which the suitor entered the portals of the court. The relief
that the suitor is entitled in law could still be denied in equity on account
of subsequent and intervening events, i.e., events between the date of
commencement of the litigation and the date of the decision; however, law is
well-settled that such relief may not be denied solely on account of time lost
in prosecuting proceedings in judicial or quasi-judicial forum for no fault of
the suitor [see : Beg Raj Singh v. State of U.P. [(2003) 1 SCC 726] ]. It would, therefore, not be prudent or
wise to reject a claim only because of the time taken by the court(s) to decide
the issue before it.
27.
Lapse of time could, however, be a major factor for denying compassionate
appointment where the claim is lodged belatedly. A presumption is legitimately
drawn in cases of claims lodged belatedly that the family of the deceased/incapacitated
employee is not in immediate need of financial assistance. However, what would
be a reasonable time would largely depend on the policy/scheme for
compassionate appointment under consideration. If any time limit has been
prescribed for making an application and the claimant applies within such
period, lapse of time cannot be assigned as a ground for rejection.
28.
The death of the respondent’s father, in this case, occurred in December 2001.
Now, we are in 2025. The respondent cannot be blamed for the delay, since he
was diligently pursuing his claim before the appellant and thereafter before
the High Court. Thus, irrespective of how old the respondent is presently,
his age cannot be determinative for foreclosing his claim and bar a consideration
of the same on merits.
29.
The second sub-issue pertains to the real objective sought to be achieved by
offering compassionate appointment. We have noticed the objectives of the
scheme of 1993 and construe such objectives as salutary for deciding any claim
for compassionate appointment. The underlying idea behind compassionate
appointment in death-in-harness cases appears to be that the premature and
unexpected passing away of the employee, who was the only bread earner for the
family, leaves the family members in such penurious condition that but for an
appointment on compassionate ground, they may not survive. There cannot be a
straitjacket formula applicable uniformly to all cases of employees
dying-in-harness which would warrant appointment on compassionate grounds. Each
case has its own peculiar features and is required to be dealt with bearing in
mind the financial condition of the family. It is only in “hand-to-mouth” cases
that a claim for compassionate appointment ought to be considered and granted,
if at all other conditions are satisfied. Such “hand-to-mouth” cases would
include cases where the family of the deceased is ‘below poverty line’ and
struggling to pay basic expenses such as food, rent, utilities, etc., arising
out of lack of any steady source of sustenance. This has to be distinguished
from a mere fall in standard of life arising out of the death of the bread
earner.
30.
The observation in Kunti Tiwary (supra) noted above seems to assume
significance and we draw inspiration therefrom in making the observation that
no appointment on compassionate ground ought to be made as if it is a matter of
course or right, being blissfully oblivious of the laudable object of any
policy/scheme in this behalf.
31.
Thus, examination of the financial condition to ascertain whether the
respondent and his mother were left in utter financial distress because of the
death of the bread earner is not something that can be loosely brushed aside.
32.
This takes us to the third sub-issue tasking us to consider whether there has
been a proper and reasonable assessment of the financial condition of the
family consequent upon death of the respondent’s father. The order of the MD
& CEO has been extracted above, verbatim. What transpires from a bare
reading of such order is that the deceased left behind him his widow, the
respondent and three daughters as his surviving heirs. All the daughters were
married and settled. Only his spouse and son could count as dependants. The
daughters were not shown to be dependent on the deceased while he was alive and
in service. The respondent and his mother were residing in their own house.
That apart, the deceased was 4 (four) months away from retirement on
superannuation. It has been indicated in such order what the last drawn net
salary of the deceased was and had he survived even after superannuation, what
quantum of money would he have received as monthly pension. Also, the amount of
monthly family pension being paid to the respondent’s mother is indicated.
Although on behalf of the respondent a contention has been raised that there
has been no proper assessment of his financial condition, rather strangely, the
figures referred to by the MD & CEO have not been disputed at all. We are,
thus, left with no option but to proceed on the basis that the same are
correct. If, indeed, the respondent’s father would have received a pension
amount of Rs. 6398/- and burdened to feed himself as well as his two
dependants, viz. his spouse and son, the amount of family pension initially
sanctioned, i.e., Rs. 4637.92 could not have, by any stretch of imagination, be
seen as insufficient or inadequate for feeding two mouths. It is also not in
dispute that the net terminal benefits in a sum of Rs. 3.09 lakh paid to the
respondent/his mother would have been the same amount which the deceased would
have received as terminal benefits after superannuation, had he been alive.
Thus, it is not a case where the death of the respondent’s father brought about
such dire consequence and/or disastrous outcome that the respondent and his
mother would have to cope with miserable effects which, as the respondent
urged, could be remedied only by offering an appointment on compassionate
ground. We regret our inability to be ad idem with learned counsel for the
respondent.
33.
The next sub-issue, which cannot be overlooked, is this. The scheme of 1993
envisages assessment of the suitability of the claimant for compassionate
appointment. As has been laid down in several decisions of this Court, noted
above, the clauses forming part of the policy/scheme for compassionate
appointment have to be followed to the letter. Without the respondent
having been subjected to a suitability test, the Division Bench plainly fell in
error in directing the respondent’s appointment in the category of clerk
relying on the decision in Canara Bank (supra). It is of some
significance that even Canara Bank (supra) did not order appointment
but required reconsideration of the claim.
34.
Whether relaxation in age ought to have been granted is the next sub-issue. A
contention raised on behalf of the respondent, and which succeeded, was to the
effect that since he was overaged only by eight months on the date of death of
his father, he should have been granted relaxation of age for which power was
conferred by the scheme of 1993. We are conscious that there is substance in
the contention on behalf of the respondent that this issue is no longer open to
be decided here. The decision initially taken that the respondent was over-aged
had been set aside in the first round of litigation and, therefore, the
principle of res judicata is indeed attracted.
35.
However, the point having been argued at some length, our views on
interpretation of the scheme of 1993 could be of some worth for courts deciding
similar such issue in future. We are in agreement with learned counsel for the
appellant that the question of relaxation would arise only when the claimant satisfies
the other requirements of the scheme of 1993 for compassionate appointment.
What seems to be logical is that no dependant, who otherwise satisfies all
criteria for compassionate appointment including suitability, should be told
off at the gate solely on the ground of age-bar. If the age of the
claimant is found to be within the relaxable limit, discretion is available to
be exercised in an appropriate case. Relaxation of age is a step to be taken in
the final stages of the entire process and it would arise for consideration
provided all other conditions for appointment are satisfied. If in a given
case, such as this, that the family of the deceased is not found to be
indigent, the first threshold is not crossed and thereby, the process does not
progress any further. In such a case, it would be in idle formality to consider
whether relaxation of age should be granted.
36.
Finally, it is noteworthy that although the Single Bench directed further
consideration of the claim of the respondent upon quashing of the impugned
order of rejection passed by the MD & CEO, the Division Bench went a step
further and directed appointment. Power of an appellate court is circumscribed
by laws. Unless a particular case in appeal is so exceptional in nature that
the appellate court considers it imperative to exercise power akin to power
conferred on appellate courts by Order XLI Rule 33, Civil Procedure Code, such
power should normally not be exercised. We have not found reference to the said
provision as the source from which the Division Bench drew power to order
appointment to be offered without the respondent being subjected to the
suitability test. Obviously, therefore, the appellants could not have been
worse off for filing an appeal.
37.
Turning focus to the core issue, we have found that the High Court -both the
Single Bench and the Division Bench - heavily relied on the decision
in Canara Bank (supra) in reaching its respective conclusions. We do
appreciate the predicament of the High Court. Perhaps, the said Benches were
left with no other option but to feel bound by what this Court had observed and
decided therein; more so, because the decision dealt with the scheme of 1993
framed by the appellant itself, which is under consideration here.
38.
The high courts, we reiterate, must bear in mind the decision of this Court
in Director of Settlements, A.P. v. M.R. Apparao[(2002) 4 SCC 638] where certain pertinent observations were
made in regard to the binding effect of a decision of this Court. The relevant
passage reads:
“7. … The law which
will be binding under Article 141 would, therefore, extend to all
observations of points raised and decided by the Court in a given case. So far
as constitutional matters are concerned, it is a practice of the Court not to
make any pronouncement on points not directly raised for its decision. The
decision in a judgment of the Supreme Court cannot be assailed on the ground
that certain aspects were not considered or the relevant provisions were not
brought to the notice of the Court (see …). When the Supreme Court decides a
principle it would be the duty of the High Court or a subordinate court to
follow the decision of the Supreme Court. A judgment of the High Court which
refuses to follow the decision and directions of the Supreme Court or seeks to
revive a decision of the High Court which had been set aside by the Supreme
Court is a nullity. …”
(emphasis
supplied)
39.
The ratio of the decision in Canara Bank (supra) in view
of Article 141 of the Constitution was binding on the High Court, no
matter whether in such decision this Court considered all the provisions of the
scheme of 1993 or not. Even an obiter dictum of this Court could be binding on
the high courts. However, being a coordinate bench, we neither feel
bound by any obiter dictum nor any principle laid down in an
earlier decision which did not have the occasion to consider the issue of
financial condition from all relevant perspectives.
40.
Leaving aside the fact that Canara Bank (supra) has been referred to
a larger bench, we have independently looked into the issue having regard to
all relevant factors.
41.
Paragraph 1 of the decision in Canara Bank (supra) records the common
question of law arising in the civil appeals. Briefly put, the question was
whether the family members of the employee dying-in- harness during the
subsistence of the scheme of 1993 were entitled to claim compassionate
appointment notwithstanding that their financial condition was good and that
the scheme of 1993 had been replaced with the scheme of 2005.
42.
While reasoning that the stand of the appellant was unjustified, the coordinate
bench had the occasion to consider several decisions of this Court and ultimately
held as follows:
“19. Insofar as the
contention of the appellant Bank that since the respondent’s family is getting
family pension and also obtained the terminal benefits, in our view, is of no
consequence in considering the application for compassionate appointment.
Clause 3.2 of the 1993 Scheme says that in case the dependant of the deceased
employee to be offered appointment is a minor, the Bank may keep the offer of
appointment open till the minor attains the age of majority. This would
indicate that granting of terminal benefits is of no consequence because even
if terminal benefit is given, if the applicant is a minor, the Bank would keep
the appointment open till the minor attains majority.
…
22. 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 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.”
43.
In our considered view, the objectives of the scheme of 1993 and the
requirements of disclosure relating to financial condition and the details of
liabilities of the deceased employee in the prescribed formats (Annexures I and
II, respectively) would leave none in doubt about the intention of the policy
makers. Overcoming the immediate financial difficulties on account of sudden
stoppage of the main source of income and existence of indigent circumstances
necessitating employment to one of the dependants being at the heart of the
scheme of 1993, it is difficult, if not impossible, to accept it as a valid
proposition of law that grant of terminal benefits cannot be of any consequence
since paragraph 3.2 of the scheme of 1993 permits the offer of appointment to
be kept open till such time the surviving minor dependant, who is to be offered
appointment, attains majority. To our mind, what paragraph 3.2 postulates is
that, despite there being indigent circumstances necessitating appointment, the
object of compassionate appointment there under should not be frustrated for
mere absence of an eligible dependant family member. The offer would be kept
open for such minor to attain majority, whereafter he would be offered
appointment subject to suitability, and once he accepts the appointment, he
would be under an obligation to look after the other indigent family members.
Although paragraph 3.2 may not be wholly in sync with the objective of overcoming
immediate financial difficulties, it has to be seen as a benevolent clause
extending the benefit of compassionate appointment even beyond reasonable
limits, obviously to cover exceptional cases, for ensuring the right of the
family members of the deceased employee to live with human dignity. The idea
for incorporation of this clause in the scheme of 1993 cannot be confused with
grant/release of terminal benefits. Both operate in different arena and,
therefore, we respectfully disagree with the reasoning in paragraph 19
of Canara Bank (supra).
44.
As pertinently held in B. Kishore (supra), indigence of the
dependants of the deceased employee is the fundamental condition to be
satisfied under any scheme for appointment on compassionate ground and that if
such indigence is not proved, grant of relief in furtherance of protective
discrimination would result in a sort of reservation for the dependents of the
employee dying-in-harness, thereby directly conflicting with the ideal of
equality guaranteed under Articles 14 and 16 of the
Constitution. Also, judicial decisions abound that in deciding a claim for
appointment on compassionate grounds, the financial situation of the deceased
employee's family must be assessed. In a situation otherwise, the purpose of the
scheme may be undermined; without this evaluation, any dependent of an employee
who dies while in service might claim a right to employment as if it is
heritable.
45.
The ratio decidendi of all these decisions have to be read in harmony to
achieve the noble goal of giving succour to the dependants of the employee
dying-in-harness, who are genuinely in need, and not with the aim of giving
them a post for another post. One has to remember in this connection the
caution sounded in Umesh Kumar Nagpal (supra) that as against the
destitute family of the deceased there are millions of other families which are
equally, if not more, destitute.
46.
Premised on the aforesaid reasoning of ours, we conclude that the order of the
MD & CEO refusing to grant the prayer of the respondent for compassionate
appointment was unexceptionable and, therefore, not liable to any interference
in the exercise of writ jurisdiction.
47.
At the same time, we cannot be oblivious of Canara Bank (supra)
having been rendered by a coordinate bench. Having disagreed
with Canara Bank (supra), judicial propriety demands that we follow
the appropriate course, i.e., to refer the matter to a larger bench. We are
also not oblivious of the legal position that so long the decision that is
doubted is overruled, it continues to remain binding. A reference to a
larger bench, as made by the coordinate bench in Sheo Shankar
Tewari (supra), if made by us would only add to the agony and pain of the
respondent considering that one cannot foresee an imminent resolution of the
controversy, in light of the admitted fact that the reference made by Sheo
Shankar Tewari (supra) in 2019 is still unanswered.
CONCLUSION
48.
Having regard to the foregoing discussion of the predicament faced by the High
Court, we cannot hold the impugned order to be entirely unjustified. To the
extent it has relied on Canara Bank (supra), we cannot fault the
Division Bench or, for that matter, the Single Bench. The Division Bench,
feeling bound by Canara Bank (supra), did not have the occasion to
enter into a proper examination of the order of the MD & CEO. It was
of the clear impression that the said order was in the teeth of what was held
in paragraph 19 by this Court in Canara Bank (supra). However,
at the same time, we are of the firm opinion that notwithstanding Canara
Bank (supra), the Division Bench ought not to have overlooked the
criterion relating to suitability while directing appointment of the respondent
straightaway. To this extent, learned counsel for the appellant is right
that the question of suitability was left untouched by Canara
Bank (supra) and the appellant ought not to have been made to suffer an
order on its appeal having more adverse consequences than the order on the writ
petition.
49.
In the fitness of things, we have decided to invoke our powers
under Article 142 of the Constitution. Another coordinate bench
seized of this appeal appears to have observed on 21st May, 2024 that it would
consider making a direction for payment of a lumpsum amount to the respondent
towards full and final settlement and, accordingly, time was granted to the
parties to obtain instructions. Though no agreement was reached and whether the
respondent is covered under the scheme of 2005 for lumpsum ex-gratia payment
has not been examined by us as well as by the High Court, but bearing in mind
the approach of the coordinate bench coupled with the circumstance of hope
being generated in the mind of the respondent for appointment based on
his success before the High Court, we are satisfied that interest of
justice would be sufficiently served if the appellant is directed to make a
lumpsum payment of Rs.2.5 lakh to the respondent within a period of 2 (two)
months from date and the proceedings be closed. It is ordered, accordingly. We
hasten to add that this would be in addition to Rs.50,000/- paid to the
respondent in terms of an earlier order of another coordinate bench while
issuing notice.
50.
In the final analysis, the impugned judgment and order of the Division Bench as
well as that of the Single Bench stands set aside.
51.
The civil appeal is allowed on the aforesaid terms. No costs.
------