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Compassionate Appointment

2008-03-14 Mumtaz YunusMulani Vs. State of Maharashtra, (2008) 11 SCC 384 : JT 2008 (4) SC 512 : 2008 AIR(SCW) 3642

posted 1 Jun 2012 09:02 by Law Kerala   [ updated 1 Jun 2012 09:08 ]


SUPREME COURT OF INDIA
Hon'ble Mr. Justice S.B. Sinha
S.B. SINHA & V.S. SIRPURKAR JJ.
Civil Appeal No 2002 of 2008
(Arising out of SLP (C) No.19123 of 2006)
Decided on:- 14-03-2008

Head Note:-

Service Law - Compassionate appointment - Respondent is a charitable institution. It is run on Government aid. It cannot afford to appoint persons in a post which has not been sanctioned. It has not been denied or disputed that one Arun Uttareshwar has already been appointed in place of the deceased husband of the appellant. It does not matter as to whether the said appointment has been approved by the State or not inasmuch as if it had not been done, on the basis of the policy decision contained its is resolution dated 31st December 2002 the same cannot be considered to be of much significance, particularly, in view of the fact that the appellant's husband died as far back as on 16.9.1996 and the vacancy had been filled up in the year 1997. Furthermore, about 12 years have passed. Appellant's son is aged about 20 years and daughter is aged about 16 years. Therefore, they have become major. Appellant herself would be aged about 38 years now. She cannot be given any appointment at this age. 
 
Chronological List of Cases Cited:-
  1. G. (Karmik) & Ors. v. Prahalad Mani Tripathi, JT 2007 (7) SC 556
  2. National Institute of Technology & Ors. v. Niraj Kumar Singh, JT 2007 (3) SC 163
  3. State of J & K & Ors. v. Sajad Ahmed Mir, JT 2006 (6) SC 387
  4. Govind Prakash Varma v. Life Insurance Corporation of India & Ors., (2005) 10 SCC 289
  5. General Manager (D&PB) & Ors. v. Kunti Tiwary & Anr., (2004) 7 SCC 271
  6. Punjab National Bank v. Ashwini Kumar Taneja, JT 2004 (6) SC 418
  7. Umesh Kumar Nagpal v. State of Haryana & Ors., JT 1994 (3) SC 525
  8. Smt. Sushma Gosain & Ors. v. Union of India & Ors., JT 1989 (3) SC 570
For the Appellant:- 
  • Mr. Makarand D. Adkar
  • Mr. Vishwajit Singh 
For the Respondents:-
  • Mr. Sudhanshu S. Choudhari
  • Mr. Naresh Kumar
  • Mr. V.N. Raghupathy
J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. Whether compassionate appointment of the appellant is warranted in the facts and circumstances of this case is the question involved herein.

3. Appellant is the widow of one Yunus Dastagir Mulani. He was a Peon witking in the respondent, a vocational institution. It is a public charitable trust. Appellant's husband expired on 6.9.1996. She filed an application for appointment on compassionate ground. As no response thereto was received, she made representations.

4. Second Respondent, however, declined to give any appointment on compassionate ground to the appellant. She filed a writ petition before the High Court. By reason of the impugned judgment the said petition has been dismissed.

5. Mr. Makarand D. Adkar, learned counsel appearing on behalf of the appellant, would submit that the reason for depriving the appellant of the right to be appointed on compassionate ground, being payment of family pension, the impugned judgment cannot be sustained. It was contended that the appellant has a large family to maintain which includes her two grown up children. The family pension received by her being only Rs.1,100/- per month, the respondent should be directed to offer appointment on compassionate ground to her even at that stage.

6. Learned counsel appearing on behalf of the respondents, on the other hand, would contend that immediately upon the death of the appellant's husband, the respondents supported the case of the appellant in assisting her to get the retrial benefits of her husband. However, in the year 1997, another person being Mr. Arun Uttereshwar having been appointed, it is not possible to dismiss him from service so as to accommodate the appellant. 

7. Appellant's husband was appointed in a Class IV post. The school is an aided institution. The State, although instructed the respondent to appoint the appellant on compassionate ground, it appears, such an instruction had been issued in view of the scheme for appointment on compassionate ground as contained in the Government Order dated 31st December, 2002. The said resolution, inter alia, reads as under :

"(1) Regarding giving appointment on compassionate principle, the above scheme will be applicable to all teachers and employees other than teachers of private, primary, secondary and higher middle as well as training schools for teachers.

(2) Rules relating to absorption of relatives of employees deceased or retired because of medical reason, are given in the enclosed Annexure "A".

(3) Information about application to be made for service by the concerned relatives of employees and documents to be submitted along with it will be as mentioned in Annexure "B".

(4) If the decision is taken prior to implementation of this scheme in respect of giving/refusing to give appointment on compassionate principle, those cases should not be taken into consideration for review. However, those employees who are deceased or those employees who are prematurely retired because of incurable illness after 1 January, 2001, in case if persons from such family have applied for appointment on compassionate principle, and if in case their application has been turned down, such relatives can submit their application again afresh in this scheme."

8. The fact that the appellant has been receiving family pension is not in dispute. It has furthermore been averred in the counter affidavit that she has income from the immoveable properties in regard whereto, there is no denial or dispute.

9. Appointment on compassionate ground can only be granted to tide over the sudden crisis of the family of the deceased. The right to get appointment on compassionate ground would depend upon the scheme operating in the field. [See Umesh Kumar Nagpal v. State of Haryana & Ors. [(1994) 4 SCC 138]; and National Institute of Technology & Ors. v. Niraj Kumar Singh [2007 (2) SCALE 525]

9. The High Court in its judgment had noticed that the scheme which was operative at the relevant point of time was that appointment on compassionate ground should not be given if the monthly income exceeds Rs.5,00/-. Evidently, the appellant did not fulfill the said criteria. It may be true that in a given case, appointment on compassionate ground cannot be denied only because the dependent of the deceased had been receiving some amount by way of family pension. 

10. However, it is now a well settled principle of law that appointment on compassionate ground is not a source of recruitment. The reason for making such a benevolent scheme by the State or the Public Sector Undertaking is to see that the dependents of the deceased are not deprived of the means of livelihood. It only enables the family of the deceased to get over the sudden financial crisis. {see I.G. (Karmik) & Ors. v. Prahalad Mani Tripathi [(2007) 6 SCC 162]}.

11. In General Manager (D&PB) & Ors. v. Kunti Tiwary & Anr. [(2004) 7 SCC 271], this Court laid down the law as under :

"8. This recommendation of the Indian Banks' Association was accepted in the Scheme which was finally formulated on 1-1-1998 where the same criteria for determining the financial condition of the family was laid down. It may be noted that the express language for appointment on compassionate grounds reads as follows :"Appointments in the public services are made strictly on the basis of open invitation of applications and merit. However, exceptions are made in favour of dependants of employees dying in harness and leaving their family in penury and without any means of livelihood."

12. However, we may notice that in Punjab National Bank v. Ashwini Kumar Taneja [(2004) 7 SCC 265], this Court relying on the decision of Smt. Sushma Gosain & Ors. v. Union of India & Ors. [(1989 (4) SCC 468] held :

"9. One other thing which needs to be considered is whether the retiral benefits are to be taken into consideration while dealing with prayer for compassionate appointment. The High Court was of the view that the same was not to be taken into consideration. The view is contrary to what has been held recently in G.M. (D&PB) v. Kunti Tiwary. It was categorically held that the amounts have to be taken into consideration. In the instant case, there was a scheme called "Scheme for Employment of the Dependants of the Employees Who Die While in the Service of the Bank Service on Compassionate Grounds" (in short "the Scheme") operating in Appellant 1 Bank which categorically provides as follows:

"Financial condition of the family

The dependants of an employee dying in harness may be considered for compassionate appointment provided the family is without sufficient means of livelihood, specifically keeping in view the following:

(a) Family pension.

(b) Gratuity amount received.

(c) Employee's/Employer's contribution to PF.

(d) Any compensation paid by the Bank or its Welfare Fund.

(e) Proceeds of LIC policy and other investments of the deceased employee.

(f) income of family from other sources.

(g) Employment of other family members.

(h) Size of the family and liabilities, if any, etc.

It is most respectfully submitted that the Board of Directors of the petitioner Bank had approved the abovesaid Scheme, which was based upon the guidelines circulated by Indian Banks' Association to all the public sector banks which in turn are based upon the law laid down by this Hon'ble Court in the case of Umesh Kumar Nagpal v. State of Haryana. The Scheme after approval was circulated vide PDCL 6/97 read with PDCL 11/99 dated 17-4-1999."

13. The question came up for consideration yet again in Govind Prakash Varma v. Life Insurance Corporation of India & Ors. [(2005) 10 SCC 289], wherein it was held :

"6.In our view, it was wholly irrelevant for the departmental authorities and the learned Single Judge to take into consideration the amount which was being paid as family pension to the widow of the deceased (which amount, according to the appellant, has now been reduced to half) and other amounts paid on account of terminal benefits under the Rules. The scheme of compassionate appointment is over and above whatever is admissible to the legal representatives of the deceased employee as benefits of service which one gets on the death of the employee. Therefore, compassionate appointment cannot be refused on the ground that any member of the family received the amounts admissible under the Rules. So far as the question of gainful employment of the elder brother is concerned, we find that it had been given out that he has been engaged in cultivation. We hardly find that it could be considered as gainful employment if the family owns a piece of land and one of the members of the family cultivates the field. This statement is said to have been contradicted when it is said that the elder brother had stated that he works as a painter. This would not necessarily be a contradiction much less leading to the inference drawn that he was gainfully employed somewhere as a painter. He might be working in his field and might casually be getting work as painter also. Nothing has been indicated in the enquiry report as to where he was employed as a regular painter. The other aspects, on which the officer was required to make enquiries, have been conveniently omitted and not a whisper is found in the report submitted by the officer. In the above circumstances, in our view, the orders passed by the High Court are not sustainable. The respondents have wrongly refused compassionate appointment to the appellant. The inference of gainful employment of the elder brother could not be acted upon. The terminal benefits received by the widow and the family pension could not be taken into account."

It, however, does not appear that therein the earlier binding precedent of this Court had been taken notice of.

14. Yet again in State of J & K & Ors. v. Sajad Ahmed Mir [(2006) 5 SCC 766], the law was laid down in the following terms :

"11. We may also observe that when the Division Bench of the High Court was considering the case of the applicant holding that he had sought "compassion", the Bench ought to have considered the larger issue as well and it is that such an appointment is an exception to the general rule. Normally, an employment in the Government or other public sectors should be open to all eligible candidates who can come forward to apply and compete with each other. It is in consonance with Article 14 of the Constitution. On the basis of competitive merits, an appointment should be made to public office. This general rule should not be departed from except where compelling circumstances demand, such as, death of the sole breadwinner and likelihood of the family suffering because of the setback. Once it is proved that in spite of the death of the breadwinner, the family survived and substantial period is over, there is no necessity to say "goodbye" to the normal rule of appointment and to show favour to one at the cost of the interests of several others ignoring the mandate of Article 14 of the Constitution."

15. In this case, the respondent is a charitable institution. It is run on Government aid. It cannot afford to appoint persons in a post which has not been sanctioned. It has not been denied or disputed that one Arun Uttareshwar has already been appointed in place of the deceased husband of the appellant. It does not matter as to whether the said appointment has been approved by the State or not inasmuch as if it had not been done, on the basis of the policy decision contained its is resolution dated 31st December 2002 the same cannot be considered to be of much significance, particularly, in view of the fact that the appellant's husband died as far back as on 16.9.1996 and the vacancy had been filled up in the year 1997. 

16. Furthermore, about 12 years have passed. Appellant's son is aged about 20 years and daughter is aged about 16 years. Therefore, they have become major. Appellant herself would be aged about 38 years now. She cannot be given any appointment at this age. 

17. Keeping in view the fact situation obtaining in this case, we are of the opinion that no case has been made out for exercising our discretionary jurisdiction under Article 136 of the Constitution of India. This appeal, therefore, is dismissed. No costs.

2004-01-05 General Manager (D&PB) Vs. Kunti Tiwari, (2004) 7 SCC 271 : (2004) 7 Scale 155

posted 1 Jun 2012 08:45 by Law Kerala   [ updated 1 Jun 2012 08:45 ]


SUPREME COURT OF INDIA

Hon'ble Mrs. Justice Ruma Pal

RUMA PAL & B.N. AGRAWAL, JJ
Civil Appeal No. 126 of 2004
Decided on: 05-01-2004 

Head Note:-

Service Law - Compassionate appointment - Appointments in the public services are made strictly on the basis of open invitation of applications and merit. However, exceptions are made in favour of dependants of employees dying in harness and leaving their family in penury and without any means of livelihood.

J U D G M E N T

1. Leave granted.

2. Respondent 1 is the widow and Respondent 2 is the son of K.N. Tiwary, an erstwhile employee of State Bank of India. K.N. Tiwary died while in harness on 16-1-1998. About a month after his death Respondent 1 applied to the appellant for appointment of Respondent 2 in the appellant's services by way of compassionate appointment. The Branch Manager wrote to Respondent 1 saying that the application had been registered and that a fresh proposal should be made when Respondent 2, who was a minor then, attained majority. Respondent 2 attained majority on 25-2-2000 and the application for compassionate appointment was revived. The Deputy General Manager of the zone where the late K.N. Tiwary was working, recommended Respondent 2's case for compassionate appointment and the recommendation contained a footnote in the printed format for appointment on compassionate grounds. The printed format inter alia indicated the details regarding the deceased employee, the terminal benefits, immovable property, investments and liabilities as well as pension paid. The provident fund which was received by Respondent 1 on the death of the late K.N. Tiwary was Rs 3,33,410 (Rupees three lakhs thirty-three thousand and four hundred and ten). She also received gratuity of Rs 1,73,987 and amount of Rs 1,01,344 byway of leave encashment. The application form also shows that Respondent 1 owned house of an area of 3000 square feet in Sasaram district which was valued at Rs 4.70 lakhs (approximately). As far as investments were concerned, there was an investment of total amount of Rs 66,000 in share certificates of SBI, National Saving Certificates and Unit Trust of India Bonds. On the liabilities side, it was shown that there was a housing loan which had been taken as well as festival advance and a consumer loan. The pension which was paid to the respondent was Rs 5583 inclusive of the dearness allowance. The heirs of the late K.N. Tiwary were his widow, his two sons (including R-2) and a daughter.

3. In this background the recommendation of the Deputy General Manager was:

"Keeping in view the miserable condition of the family, we are of the opinion that in absence of any employment in the family, the family members will have to face crisis caused by the sudden demise of late K.N. Tiwary and hence we strongly recommended for the employment on the compassionate ground." ;

4. The matter was placed before the Chief General Manager who, however, rejected the application for compassionate appointment. After noting the assets and liabilities of the late K.N. Tiwary, he was of the view that the financial condition of the family could not be termed as to be penurious.

5. Challenging this order of rejection, the respondent filed a writ petition. The writ petition was rejected by the learned Single Judge holding that the decision of the General Manager could not be said to be irrational or arbitrary. The Division Bench however overturned the decision of the learned Single Judge and allowed the appeal and consequently directed the appellant Bank to appoint Respondent 2 in accordance with its policy.

6. The policy in question was framed by the appellant Bank pursuant to the decision of this Court in Umesh Kumar Nagpal v. State of Haryana where this Court has said that appointment by way of compassionate appointment is an exception carved out of the general rule for appointment on the basis of open invitation of application and merit. This exception was to be resorted to in cases of penury where the dependants of an employee are left without any means of livelihood and that unless some source of livelihood was provided a family would not be able to make both ends meet.

7. In adoption of this principle, an office memorandum was circulated to all banks on 7-8-1996 emphasising that the observations of this Court would have to be complied with. The Indian Banks' Association also adopted the directive of this Court in Umesh Kumar Nagpal case in the Scheme which was proposed for appointment of heirs of deceased employees. In that proposal it was recommended that in order to determine the financial condition of the family the following amounts would have to be taken into account:

(a) Family pension.

(b) Gratuity amount received.

(c) Employee's/employer's contribution to provident fund.

(d) Any compensation paid by the Bank or its Welfare Fund.

(e) Proceeds of LIC policy and other investments of the deceased employee.

(f) Income of family from other sources. 

(g) Employment of other family members. 

(h) Size of the family and liabilities, if any, etc.

8. This recommendation of the Indian Banks' Association was accepted in the Scheme which was finally formulated on 1-1-1998 where the same criteria for determining the financial condition of the family was laid down. It may be noted that the express language for appointment on compassionate grounds reads as follows:

"Appointments in the public services are made strictly on the basis of open invitation of applications and merit. However, exceptions are made in favour of dependants of employees dying in harness and leaving their family in penury and without any means of livelihood."

9. On the basis of the criteria as recommended by the Indian Banks' Association and adopted by the appellant Bank, it could not be said that the family of the late K.N. Tiwary had been left in "penury" or "without any means of livelihood". The particulars of their income have been noted in their application and it certainly could not be said on the basis thereof that the respondents were living hand to mouth. The Division Bench erred in diluting this criteria of penury to one of "not very well-to-do".

10. In the circumstances of the case, we are of the view that the learned Single Judge was correct in dismissing the writ application of the respondents. The appeal is accordingly allowed and the decision of the Division Bench is overturned and the order of the learned Single Judge is upheld. There will be no order as to costs.

2004-08-16 Punjab National Bank Vs. Ashwini Kumar Taneja, AIR 2004 SC 4155 : (2004) 7 SCC 265 : JT 2004 (6) SC 418 : (2004) 7 Scale 16

posted 1 Jun 2012 08:29 by Law Kerala   [ updated 1 Jun 2012 08:32 ]

AIR 2004 SC 4155 : (2004) 7 SCC 265 : JT 2004 (6) SC 418 : (2004) 7 Scale 16 : 2004 AIR(SCW) 4602 : 2004 (Supp3) SCR 597
SUPREME COURT OF INDIA
Hon'ble Mr. Justice S.B. Sinha
R.P. Sethi
ARIJIT PASAYAT & C.K. THAKKER, JJ.)

Civil Appeal No. 5256 of 2004

(Arising out of SLP (C) No. 934 of 2004)

16/08/2004

Head Note:-

Constitution of India, 1950 - Article 16 - Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 - Section 19 - Compassionate appointment - Death of employee of bank - Whether the retiral benefits are to be taken into consideration while dealing with prayer for compassionate appointment? Respondent stated that in case of similarly situated persons compassionate appointments have been made by the Bank. Held, Appellants have justified the non-consideration of the respondent's appointment on compassionate grounds on the ground that the other cases related to non- pensionable category and unlike the case of the respondent, the other persons who were extended the benefits were not receiving any pension.
For Appellants 
  • Mukul Rohtagi, Sr. Advocate
  • Dhruv Mehta
  • Ms. Shalini Gupta
  • Mohit Choudhary for M/s. K. L. Mehta and Co. 
For Respondent:- 
  • K. S. Bhati

J U D G M E N T

ARIJIT PASAYAT, J

Leave granted.

2. Punjab National Bank, (hereinafter referred to as the 'employer') calls in question legality of the judgment by a Division Bench of the Rajasthan High Court at Jodhpur affirming the order passed by learned Single Judge holding that the respondent herein is entitled to be appointed on compassionate grounds.

3. Backgrounds facts in a nutshell are as follows:-

Respondent's father died on 3.12.1999 while working as a class IV employee of the employer-Bank leaving behind him, his mother-widow, two sons and one daughter. On 5.1.2000, the widow of the deceased-employee made a representation to the Bank on behalf of her elder son, (respondent herein) for employment on compassionate grounds. The request was turned down on 10.3.2000 and 17.3.2000 on the ground that there was no financial hardship to the family of the deceased and they had received substantial amounts after the death of the respondent's father. A writ petition was filed by the respondent before the Rajasthan High Court. By order dated 19th August, 2003, the Writ Petition was allowed with a direction to forthwith consider the case of respondent herein for compassionate appointment and provide him suitable job. The order was challenged in Letters Patent Appeal. By the impugned judgment the same was dismissed. It was held that retiral benefits received by the heirs of the deceased employee cannot be made a ground for rejecting application for compassionate appointment.

4. In support of the appeal learned counsel for the appellants submitted that the approach of the High Court is erroneous. When the object of compassionate appointment is kept in view with reference to the amounts received by the heirs of the deceased-employee, it was submitted that there was no financial hardship. Learned counsel for the respondent submitted that the amounts like gratuity, provident fund etc. have no relevance for determining the question whether compassionate appointment is to be made. It is to be seen that the appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding appointments being made on open invitation of application on merits. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crises.

5. As was observed in State of Haryana and Ors. v. Rani Devi & Anr. (JT 1996 (6) SCC 646), it need not be pointed out that the claim of person concerned for appointment on compassionate ground is based on the premises that he was dependant on the deceased employee. Strictly this claim cannot be upheld on the touchstone of Articles 14 or 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative orders which can stand the test of Articles 14 and 16. Appointment on compassionate ground cannot be claimed as a matter of right. Die-in harness scheme cannot be made applicable to all types of posts irrespective of the nature of service rendered by the deceased employee. In Rani Devi's case (supra) it was held that scheme regarding appointment on compassionate ground if extended to all types of casual or ad hoc employees including those who worked as apprentices cannot be justified on constitutional grounds.In Life Insurance Corporation of India v. Asha Ramchhandra Ambekar (Mrs.) and Anr. (1994 (2) SCC 718) it was pointed out that High Courts and Administrative Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulations framed in respect thereof do not cover and contemplates such appointments. It was noted in Umesh Kumar Nagpal v. State of Haryana and Ors. (1994 (4) SCC 138) that as a rule in public service appointment should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis. But such appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased.

6. In Smt. Sushma Gosain and Ors. v. Union of India and Ors. (1989 (4) SCC 468) it was observed that in all claims of 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-earner in the family. Such appointments should, therefore, be provided immediately to redeem the family in distress. The fact that the ward was a minor at the time of death of his father is no ground, unless the scheme itself envisage specifically otherwise, to state that as and when such minor becomes a major he can be appointed without any time consciousness or limit. The above view was re-iterated in Phoolwati (Smt.) v. Union of India and Ors. (1991 Supp. (2) SCC 689) and Union of India and Ors. v. Bhagwan Singh (1995 (6) SCC 476).In Director of Education (Secondary) and Anr. v. Pushpendra Kumar and Ors. (1998 (5) SCC 192); it was observed that in matter of compassionate appointment there cannot be insistence for a particular post. Out of purely humanitarian consideration and having regard to the fact that unless some source of livelihood is provided the family would not be able to make both ends meet, provisions are made for giving appointment to one of the dependants of the deceased who may be eligible for appointment. Care has, however, to be taken that provision for ground of compassionate employment which is in the nature of an exception to the general provisions does not unduly interfere with the right of those other persons who are eligible for appointment to seek appointment against the post which would have been available, but for the provision enabling appointment being made on compassionate grounds of the dependant of the deceased employee. As it is in the nature of exception to the general provisions it cannot substitute the provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision.

7. In State of U.P. and Ors. v. Paras Nath (1998(2) SCC 412) it was held that the purpose of providing employment to the dependant of a government servant dying-in harness in preference to anybody else is to mitigate hardship caused to the family of the deceased on account of his unexpected death while in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are Rules providing for such appointments. None of these considerations can operate when the application is made after a long period of time. In that case also the delay was 17 years.

8. These aspects were highlighted in State of Manipur v. Md. Rajaodin (2003 (7) SCC 511), State of Haryana & Anr. v. Ankur Gupta (2003 (7) SCC 704), Haryana State Electricity Board v. Naresh Tanwar (1996 (8) SCC 23) and Haryana State Electricity Board v. Hakim Singh (1997 (8) SCC 85).

9. One other thing which needs to be considered is whether the retiral benefits are to be taken into consideration while dealing with prayer for compassionate appointment. The High Court was of the view that the same was not to be taken into consideration. The view is contrary to what has been held recently in The General Manager (D&P.B.) & Ors. v. Kunti Tiwary & Anr. (Civil Appeal 126 of 2004 disposed of on 5.1.2004). It was categorically held that the amounts have to be taken into consideration. In the instant case, there was a scheme called 'Scheme for Employment of the Dependants of the Employee who die while in the service of the Bank Service on Compassionate Grounds' (in short the 'Scheme') operating in the appellant no. 1.Bank which categorically provides as follows :

"FINANCIAL CONDITION OF THE FAMILY

The dependents of an employee dying in harness may be considered for compassionate appointment provided the family is without sufficient means of livelihood, specifically keeping in view the following:

(a) Family pension;

(b) Gratuity amount received;

(c) Employee's/ Employer's contribution to PF;

(d) Any compensation paid by the bank or its Welfare Fund;

(e) Proceeds of LIC policy and other investments of the deceased employee;

(f) Income for family from other sources;

(g) Employment of other family members;

(h) Size of the family and liabilities, if any, etc."

It is most respectfully submitted that the Board of Directors of the petitioner bank had approved the abovesaid scheme, which was based upon the guidelines circulated by Indian bank Association to all the Public Sector Banks which in turn are based upon the law laid down by this Hon'ble Court in the case of Umesh Kumar Nagpal Vs. State of Haryana & Ors. reported as 1994 (4) SCC 138. The Scheme after approval was circulated vide PDCL 6/97 read with PDCL 11/99 dated 17.4.1999."

10. Learned counsel for the respondent stated that in case of similarly situated persons compassionate appointments have been made by the Bank. But the appellants have justified the non-consideration of the respondent's appointment on compassionate grounds on the ground that the other cases related to non- pensionable category and unlike the case of the respondent, the other persons who were extended the benefits were not receiving any pension. View taken by the learned Single Judge and affirmed by the Division Bench by the impugned judgment cannot be sustained and both the order of the learned Single Judge and the judgment of the Division Bench are accordingly set aside.

11. Our judgment, however, will not stand in the way of the respondent's case being considered sympathetically under any scheme or by any administrative decision in accordance with law.

13. The appeal is allowed with no orders as to costs.


2004-01-23 Govind Prakash Verma Vs. Life Insurance Corporation of India, (2005) 10 SCC 289

posted 1 Jun 2012 08:07 by Law Kerala   [ updated 1 Jun 2012 08:07 ]


SUPREME COURT OF INDIA

BRIJESH KUMAR AND ARUN KUMAR, JJ.
Civil Appeal No. 452 of 2004
(Arising out of SLP (C) No. 3072 of 2003)
Decided on 23-01- 2004

Head Note:-

Service Law - Compassionate appointment - Held, It was wholly irrelevant for the departmental authorities to take into consideration the amount which was being paid as family pension to the widow of the deceased and other amounts paid on account of terminal benefits under the Rules - Compassionate appointment cannot be refused on the ground that any member of the family received the amount admissible under the Rules.

O R D E R

1. Leave granted.

2. This appeal is preferred against the judgment and order passed by the Patna High Court, refusing the relief of compassionate appointment to the appellant on the death of his father during the course of employment. The learned Single Judge mentioned in the order, the factors which were taken into account by the Senior Divisional Manager refusing the appointment, that the widow of the deceased gets monthly pension of Rs 4735, apart from the terminal benefits which were paid to her, namely, gratuity, PF, additional gratuity, etc. According to the conclusions of the officer, as quoted in the judgment of the learned Single Judge, it is sufficient for the maintenance of the family.

3. It appears that during the course of the proceedings the learned Single Judge had required that some officer of LIC may make enquiries into certain aspects of the matter, which we find enumerated in the order dated 25-02-2002. The learned Single Judge observed as follows:

"It is, therefore, essential to further investigate as to whether the members of the family engaged in gainful employment were also supporting the family of the deceased employee or he was living separately and independently and the other members of the family of the deceased did not receive his help or sustenance from his gainful employment. Unless this aspect of the matter is also looked into, the provision of sub-rule (iii) of Rule 212 will lose its significance and as noted above it will not fully serve the purpose of the scheme. In the case in hand though it was admitted that the elder brother of the petitioner was gainfully employed in cultivation, it was also stated that he was living separately from the other family members."

4. In pursuance of the said order an officer of LIC appears to have made some enquiry and submitted his report dated 27-04-2002. In the report, he repeats about the family pension which is being paid to the widow of the deceased and the amount which was received as terminal benefits admissible under the Rules. Thereafter, it is mentioned in the report that the elder brother of the complainant is engaged as a painter but he did not disclose his income. Earlier, it is mentioned that he had said that he was engaged in cultivation. The officer inferred that the employment of the elder son of the deceased was being concealed. He also observed that at some places the statement of the elder brother was contradictory. Ultimately, the officer deputed to make enquiries, comes to the conclusion: 

"Because of the contradictory nature of statements made by the elder son as also the facts mentioned above the appointment of Govind Prakash Verma on compassionate ground is not maintainable." 

It is a brief report containing the above conclusions. There is no report in regard to other factors which the learned Single Judge had indicated in his order, upon which also he was required to submit his report. There is specific mention of the case of the appellant in the order saying that the elder brother was engaged in cultivation and was living separately. But the officer who seems to have enquired into the matter, in pursuance of the order of the learned Single Judge, totally omitted to furnish any report on the points, indicated above, as required by the High Court. They seem to be obsessed by the fact that the widow of the deceased is getting family pension and some good amount was paid to them as terminal benefits. The learned Single Judge while passing the final order takes those factors into account, namely, the family pension and other amounts which had been received as terminal benefits of the service and it is said that since the authorities have arrived at certain findings it would not be appropriate to go into those matters, thus he accepted the same and dismissed the petition.

5. In writ appeal, the Division Bench found that no infirmity was shown in the order passed by the learned Single Judge, hence, the writ appeal was dismissed.

6. In our view, it was wholly irrelevant for the departmental authorities and the learned Single Judge to take into consideration the amount which was being paid as family pension to the widow of the deceased (which amount, according to the appellant, has now been reduced to half) and other amounts paid on account of terminal benefits under the Rules. The scheme of compassionate appointment is over and above whatever is admissible to the legal representatives of the deceased employee as benefits of service which one gets on the death of the employee. Therefore, compassionate appointment cannot be refused on the ground that any member of the family received the amounts admissible under the Rules. So far as the question of gainful employment of the elder brother is concerned, we find that it had been given out that he has been engaged in cultivation. We hardly find that it could be considered as gainful employment if the family owns a piece of land and one of the members of the family cultivates the field. This statement is said to have been contradicted when it is said that the elder brother had stated that he works as a painter. This would not necessarily be a contradiction much less leading to the inference drawn that he was gainfully employed somewhere as a painter. He might be working in his field and might casually be getting work as painter also. Nothing has been indicated in the enquiry report as to where he was employed as a regular painter. The other aspects, on which the officer was required to make enquiries, have been conveniently omitted and not a whisper is found in the report submitted by the officer. In the above circumstances, in our view, the orders passed by the High Court are not sustainable. The respondents have wrongly refused compassionate appointment to the appellant. The inference of gainful employment of the elder brother could not be acted upon. The terminal benefits received by the j widow and the family pension could not be taken into account.

7. In the result, the appeal is allowed and the orders passed by the High Court are set aside. The respondents on consideration of the request of the appellant for compassionate appointment, shall pass appropriate order in the light of the observations made above, within a period of three months from today.

2012-05-23 Union of India Vs. Shashank Goswami

posted 1 Jun 2012 07:41 by Law Kerala   [ updated 1 Jun 2012 10:24 ]

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Dr. B.S. CHAUHAN AND DIPAK MISRA, JJ.

May 23, 2012

CIVIL APPEAL NO(s). 6224 OF 2008

Head Note:-

Service Law – Compassionate Appointment - Held, Appointments in government offices on compassionate grounds cannot be claimed as a right and they are permissible only in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased.

O R D E R

1. This appeal has been preferred against the impugned judgment and order dated 23.5.2006 passed by the High Court of Judicature at Allahabad in C.M.W.P. No.28535 of 2006 directing the appellants herein to reconsider application of respondent no.1 on compassionate grounds.

2. Facts and circumstances giving rise to this appeal are that one Anand Kishore Gautam working as Senior Accountant in the office of the Accountant General, Allahabad died on 19.3.2001 in harness, leaving behind two sons aged about 20 and 19 years and a daughter, aged about 17 years and Smt. Rashmi Gautam, his widow.

3. Respondent No. 1 filed an application for appointment on compassionate grounds, which came to be rejected by the appellants on 28.1.2004 in view of the prevailing scheme for appointments on compassionate grounds. Under the scheme, vacancies could be filled up on compassionate grounds only upto 5% of the cadre strength falling under direct recruitment quota during a year in Group ‘C ' and 'D ' posts.

The scheme further lays down that the total income of the family from all sources including terminal benefits after death, excluding G.P.F., should be taken into consideration. So far as the post of Group 'C' is concerned, the scheme provides that in case the family gets more than Rs.3 lakhs, the dependent of the deceased would not be eligible for employment on compassionate ground.

4. Respondent No.1 could not be offered appointment on the ground that excluding G.P.F. amount, his family had received a sum of Rs.4,40,908/- in addition to family pension of Rs.3,100/- per month granted to Mrs. Rashmi Gautam. She was entitled to get the said family pension at least for seven years and thereafter, the family pension would be Rs.1,860/- per month plus other reliefs admissible on pension .

5. Aggrieved, respondent No.1 challenged the order dated 28.1.2004 rejecting his claim, before Central Administrative Tribunal, Allahabad vide Original Application No. 728 of 2004, wherein the Tribunal by judgment and order dated 7.12.2005 quashed the order dated 28.1.2004 and directed the appellants herein to reconsider the case of respondent No.1.

6. Aggrieved by the order of the Tribunal, the appellants preferred CMWP No.28535 of 2006 before the High Court which has been dismissed vide impugned judgment. Hence this appeal.

7. We have heard Mr. S.P. Singh, learned senior counsel appearing for the appellants.

In spite of notice, the respondents did not enter appearance. The appeal is pending for the last four years before this Court.

8. Learned senior counsel appearing for the appellants has submitted that the appellants had to consider the applications for employment on compassionate grounds only within the parameters and terms and conditions incorporated in the scheme laid down for that purpose. The scheme makes a person ineligible for the post in Group 'C', in case, on the death of the incumbent on the post, the family gets retiral benefits/terminal benefits exceeding Rs. 3 lakhs.

9. There can be no quarrel to the settled legal proposition that the claim for appointment on compassionate ground is based on the premises that the applicant was dependent on the deceased employee. Strictly, such a claim cannot be upheld on the touchstone of Article 14 or 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. Appointment on compassionate ground cannot be claimed as a matter of right. As a rule public service appointment should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of the employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis and not to confer a status on the family. Thus, applicant cannot claim appointment in a particular class/group of post. Appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased. 

10. This Court in Govind Prakash Verma v. Life Insurance Corporation of India & Ors., (2005) 10 SCC 289 while dealing with a similar issue i.e. whether payment of terminal/retiral benefits to the family can be taken into consideration, held as under: 

“In our view, it was wholly irrelevant for the departmental authorities ….. to take into consideration the amount which was being paid as family pension to the widow of the deceased ….. and other amounts paid on account of terminal benefits under the Rules. . ….. Therefore, compassionate appointment cannot be refused on the ground that any member of the family received the amount admissible under the Rules.” 

11. This Court in Punjab National Bank & Ors. V. Ashwini Kumar Taneja, (2004) 7 SCC 265, placing reliance upon the earlier judgment in General Manager (D&PB) & Ors. V. Kunti Tiwari & Anr., (2004) 7 SCC 271, held that compassionate appointment has to be made in accordance with the Rules, Regulations or administrative instructions taking into consideration the financial condition of the family of the deceased. Whereas the scheme provides that in case the family of the deceased gets the retrial/ terminal benefits exceeding a particular ceiling, the dependant of such deceased employee, would not be eligible for compassionate appointment. 

12. In Mumtaz YunusMulani (Smt.) v. State of Maharashtra & Ors., (2008) 11 SCC 384, this Court examined the scope of employment on compassionate ground in a similar scheme making the dependant of an employee ineligible for the post in case the family receives terminal/ retiral benefits above the sealing limit and held that the judgment in Govind Prakash (supra) had been decided without considering earlier judgments which were binding on the Bench. The Court further held that that the appointment has to be made considering the terms of the scheme and in case the scheme lays down a criterion that if the family of the deceased employee gets a particular amount as retiral/terminal benefits, dependent of the deceased employee would not be eligible for employment on compassionate grounds. 

13. In the instant case, office of the Comptroller and Auditor General of India, New Delhi issued a Circular dated 19.2.2003 explaining the scope of such appointments. Relevant part of the same reads as under: 

“With a view to bring uniformity in our offices regarding parameters for compassionate appointment of a family member in the case of death of a government servant in harness, it has been decided that the total income of the family from all sources including terminal benefits after death, excluding G.P.F., should be taken into account. If the resultant computation works out to a figure less than the parameters given below such cases can be considered for compassionate appointment subject to fulfilment of all other conditions. The limits are given below: 
Group ‘B’ Rs. Five lakhs 
Group ‘C’ Rs. Three lakhs 
Group ‘D’ Rs. Two lakhs.” 
……. 

14. The case of the respondent was rejected by the appellants in view of the fact that the family of the deceased Anand Kishore Gautam had been given the following terminal benefit excluding the G.P.F. 

1. DCRG Rs.2,48,248.00 
2. Leave Encashment Rs.88,660.00 
3. CGEIS Rs.44,000.00 
4. DLIS Rs.60,000.00 
Total: Rs.4,40,908.00 

In addition to above, family pension @ 3100/- per month has been authorised to Smt. Rashmi Gautam for a period of 7 years and thereafter @ 1860/- per month plus admissible relief on pension.

15. In view of the fact that, in the instant case the retiral/ terminal benefits have been received by the family exceeding Rs.3 lakhs, respondent No.1 is not eligible to be considered for the Group 'C' post. 

16. In view of the above, the appeal succeeds and is allowed. The impugned judgments/orders stand set aside.  



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