By means of this petition the petitioner is challenging the order dated 3.5.2006 by which the claim for compassionate appointment made by the petitioner has been rejected on the ground that after coming into force of the New Scheme dated 4.8.2005, in place of compassionate appointment a lump sum ex gratia compensation would be paid to the claimant.
The facts of the case, in brief, are that late Vijay Pratap Singh was working as a Messenger (Class IV employee) in the State Bank of India, Branch Sahatwar, Ballia. He died while still in service on 18.5.2003 leaving behind his wife Yashoda Devi and two sons Arvind Kumar Singh (the petitioner) and Deepak and two daughters namely Deep Mala and Neetu.
According to the petitioner, an application seeking compassionate appointment was submitted by the wife of the late Vijay Pratap Singh on 5.1.2004 for providing compassionate appointment to her son as he was dependent on the deceased employee. Another application was submitted on 13.2.2005. Thereupon the bank vide its letter dated 9.4.2005 called upon the widow of the deceased Vijay Pratap Singh to submit an application for appointment on compassionate ground. However, before the same could be considered, a New Scheme came into force on 4.8.2005 in the bank, which provided for a one time lump sum ex gratia compensation in lieu of compassionate appointment. On the coming into force of the New Scheme dated 4.8.2005, the application of the widow of late Vijay Pratap Singh has been rejected by the impugned order dated 3.5.2006, wherein it was pointed out that after coming into force of the New Scheme, application for compassionate appointment cannot be considered.
I have heard Sri Anil Bhushan, learned counsel for the petitioner and Sri Jayant Banerji, learned counsel appearing for the respondent-bank.
The submission of Sri Anil Bhushan is that late Vijay Pratap Singh died while still in service on 18.5.2003 and first application seeking compassionate appointment was made by his widow on 5.1.2004 seeking appointment for her son-the petitioner. When no action was taken on this application another application was moved on 13.2.2005. The bank responded positively by calling upon the widow of the deceased employee to submit her application seeking compassionate appointment vide bank's letter dated 9.4.2005 filed as Annexure-3 to the writ petition. Therefore, in the circumstances, there was absolutely no justifiable reason for the bank not to have considered the application submitted by Yashoda Devi widow of the deceased employee.
Sri Anil Bhushan further submitted that in the letter dated 9.4.2005 there is a reference to an order dated 12.3.2005 and by this letter a positive decision has already been taken by the bank to give compassionate appointment to the petitioner and, therefore, it was not correct on the part of the bank to have rejected the claim of the petitioner on the ground that the New Scheme has come into force on 4.8.2005 and that the application for compassionate appointment cannot be considered.
Sri Anil Bushan further submitted that the New Scheme came into force on 4.8.2005 and unless there was something in the Scheme which provided that it would have retrospective effect, the Scheme should be read as having only prospective application. Sum and substance of his submission is that since the application of the petitioner had already been pending before the authority before coming into force of the New Scheme on 4.8.2005, the New Scheme could not have been applied in order to reject the claim of the petitioner and in any case by letter dated 9.4.2005 a vested right for grant of compassionate appointment had been created in favour of the petitioner.
In support of his submission Sri Bhushan has placed reliance upon a decision of the Supreme Court reported in (2007) 9 SCC 571 State Bank of India and others vs. Jaspal Kaur wherein this very Scheme has been considered by the Supreme Court and on an analyses of the facts of the case wherein the deceased employee had died on 1.8.1999 the Supreme Court held that the Scheme, which was formulated in 2005 could not have been applied to reject the claim of the widow, which was submitted before the bank on 5.2.2000.
Rebutting the submission of Sri Anil Bhushan, Sri Jayant Banerji, learned counsel appearing for the respondent bank has relied upon a decision of the Supreme Court reported in (2010) 11 SCC 661 State Bank of India and another vs. Raj Kumar wherein this very Scheme has been considered by the Supreme Court. The Supreme Court interpreting the New Scheme of 4.8.2005 has held as follows-:
"10.On the other hand if a scheme provides that on the death of an employee, a dependent family member is entitled to appointment merely on making of an application, whether any vacancy exists or not, and without the need to fulfil any eligibility criteria, then the scheme creates a right in favour of the applicant, on making the application and the scheme that was in force at the time when the application for compassionate appointment was filed, will apply. But such schemes are rare and in fact, virtually nil".
11. Normal schemes contemplate compassionate appointment on an application by a dependent family member, subject to the applicant fulfilling the prescribed eligibility requirements, and subject to availability of a vacancy for making the appointment. Under many schemes, the applicant has only a right to be considered for appointment against a specified quota, even if he fulfils all the eligibility criteria; and the selection is made of the most deserving among the several competing applicants, to the limited quota of posts available. In all these schemes there is a need to verify the eligibility and antecedents of the applicant or the financial capacity of the family. There is also a need for the applicant to wait in a queue for a vacancy to arise, or for a selection committee to assess the comparative need of a large number of applicants so as to fill a limited number of earmarked vacancies.
12. Obviously, therefore, there can be no immediate or automatic appointment merely on an application. Several circumstances having a bearing on eligibility, and financial condition, upto the date of consideration may have to be taken into account. As none of the applicants under the scheme has a vested right, the scheme that is in force when the application is actually considered, and not the scheme that was in force earlier when the application was made, will be applicable.
13. Further where the earlier scheme is abolished and the new scheme which replaces it specifically provides that all pending applications will be considered only in terms of the new scheme, then the new scheme alone will apply. As compassionate appointment is a concession and not a right, the employer may wind up the scheme or modify the scheme at any time depending upon its policies, financial capacity and availability of posts.
16.In this case the employee died in October, 2004, the application was made only in June, 2005. The application was not even by the respondent, but by his mother. Therefore, it was necessary to ascertain whether respondent really wanted the appointment, whether he possessed the eligibility, and whether any post was available. Within two months of the application, the new scheme came into force and the old scheme was abolished. The new scheme specifically provided that all pending applications will be considered under the new scheme. Therefore it has to be held that the new scheme which came into force on 4.8.2005 alone will apply even in respect of pending applications."
In the case of Raj Kumar (supra) the Supreme Court also considered its earlier judgment in the case of SBI vs. Jaspal Kaur (supra) and held as follows:-
17. The respondent relied upon the following observations in State Bank of India v. Jaspal Kaur - 2007 (9) SCC 571 to contend that he was entitled to be considered under the old scheme which was in force at the time of the application by his mother:
"26Finally in the fact situation of this case, Sri. Sukhbir Inder Singh (late), Record Assistant (Cash & Accounts) on 01.08.1999, in the Dhab Wasti Ram, Amritsar branch, passed away. The respondent, widow of Sri. Sukhbir Inder Singh applied for compassionate appointment in the appellant Bank on 05.02.2000 under the scheme which was formulated in 2005.
The High Court also erred in deciding the matter in favour of the respondent applying the scheme formulated on 04.08.2005, when her application was made in 2000. A dispute arising in 2000 cannot be decided on the basis of a scheme that came into place much after the dispute arose, in the present matter in 2005.
Therefore, the claim of the respondent that the income of the family of deceased is Rs. 5855/-
only, which is less than 40% of the salary last drawn by Late Shri. Sukhbir Inder Singh, in contradiction to the 2005 scheme does not hold water".
18. The said observations are read out of context by the respondent. In that case the Bank employee died on 1.8.1999. Application was filed by the widow on 5.2.2000. The case of the widow was considered twice and the request for appointment on compassionate grounds was declined by taking into consideration the financial position/capacity of the family. The High Court allowed the writ petition filed by the widow in 2004 on the ground that the terminal benefits of Rs.4,57,607/- received by the family were not sufficient for the sustenance of the family. In an appeal by the Bank, it was contended before this Court that in addition to Rs.4,57,607/- paid as terminal benefits, the widow was getting Rs.2055/- per month as family pension and that was not considered by the High Court. During the hearing before this court, the widow relied upon the new scheme dated 4.8.2005 and sought additional payment in terms of the scheme.
19. The above observations were made in the context of rejecting the widow's request for additional payment under the 2005 scheme. In fact, this court allowed the Bank's appeal and dismissed the writ petition filed by the widow for additional benefits. The said observations, cannot therefore be of any assistance to consider the applicability of the old scheme for compassionate appointment vis- `-vis the new scheme for ex- gratia payment.
21.We therefore allow this appeal in part as follows:-
(I) The orders of the learned Single Judge and the Division Bench are set aside.
ii.The respondent and/or his family may file a fresh application under the new Scheme, as directed by the Bank in its letter dated 31.1.2006.
iii.The appellant Bank is directed to process such application under the new Scheme, if and when made, and pay the lump sum ex gratia amount due in terms of that Scheme, to the beneficiaries, within four months of the receipt of the application.
In view of the above facts and circumstances of the case and the legal position settled by the Supreme Court, I find no reason to interfere in the impugned order.
The writ petition fails and it is accordingly dismissed.
In the impugned order dated 3.5.2006 the petitioner has been given an option to apply for the one time payment or lump sum ex gratia compensation and the last date fixed for submitting such application was 31.1.2006, however, since the petitioner came before this Court seeking compassionate appointment and the matter involved interpretation of the Scheme itself, in the circumstances, it will be open for the petitioner to apply to the respondent-bank within a period of 15 days from today along with a certified copy of this order for payment of one time lump sum ex gratia compensation in the prescribed format and if such an application is moved within the aforesaid time, the Competent Authority shall consider and decide the same in accordance with the terms of the Scheme without raising any objection with regard to the last date.
Order Date :- 13.8.2012 Asha