Hon'ble Attau Rahman Masoodi,J.
(Delivered by Hon. Attau Rahman Masoodi,J.) Heard Sri H.R. Mishra, counsel for the appellants and perused the record.
Respondent no. 3 and 4 herein, due to death of their father in harness while working with Allahabad Bank, applied for compassionate appointment. The appellant-Allahabad bank by its order dated 20.2.2006 informed them that because of cessation of the policy on compassionate appointment, it is not possible to make their appointment in bank service and an offer was made by the Bank for availing benefit of payment of one time ex-gratia in lieu of compassionate appointment. Being aggrieved by the aforesaid order, the respondents preferred Writ Petition No. 67881 of 2006, which has been allowed by the writ Court by the judgment and order dated 11.3.2010, against which the present intra Court appeal has been filed by the bank.
Perusal of the record indicates that in nutshell stand of the appellant bank before the writ Court, was that though application of the respondents for appointment, was approved under resolution dated 9.10.2004 by the Head Office, Personnel Administrative Department, but before the resolution could be acted upon and appointment could be offered, there was change in the Scheme providing compassionate appointment and under the new scheme which has become effective from 18.12.2004, the right of compassionate appointment has been taken away.
Thus, the question which arose for consideration before the writ Court was as to under which scheme claim of the respondents has to be considered. Relying upon the decision of the Apex Court in State Bank of India and others Vs. Jaspal Kaur (2007(2)SCC (L&S) 578, the writ Court came to the conclusion that application of the respondent was liable to be considered under the earlier scheme in force at the relevant point of time which provided for compassionate appointment.
Appellant's contention that there has been no final consideration of the application of respondents till issuance of scheme, has also been dealt with in the impugned judgment and the writ Court after hearing the parties and on perusal of the record, allowed the petition holding thus :
In the opinion of the Court the contention is totally misplaced. Under the resolution of the Personnel Administrative Department of the Bank as per its meeting dated 09th October, 2004 the application of the petitioner for compassionate appointment was allowed and he was directed to be offered compassionate appointment. The application of the petitioner stood finally disposed of and what remained was the performance of the ministerial act of issuance of the appointment letter.
This Court therefore, holds that both on the date the application was made as well as on the date it was finally considered by the Personnel Administrative Department of the Bank, the scheme as was applicable provided for compassionate appointment. The enforcement of scheme dated 04.02.2005, which has done away with compassionate appointment, has no application qua the case of the petitioner.
The writ petition is therefore allowed. Respondent bank is directed to take appropriate action for appointment of the petitioner in terms of the decision of the Personnel Administrative Department of the Bank dated 09.10.2004, preferably within six weeks from the date a certified copy of this order is filed before the authority concerned."
According to Sri H.R. Mishra, counsel for the appellant, there is no application of mind by the writ Court on the aspect that whether to continue or discontinue with the appointment on compassionate ground, is a policy decision of the Bank and Court ought not to have interfered with the matter unless decision of the Board of Directors was shown to be arbitrary. It is argued that the Bank scheme does not vest any right on the family members/dependant of the deceased employee to appointment in services of the Bank in view of object behind such compassionate scheme which is to provide succor to the family of deceased employee and make provision for tiding over the immediate financial crisis which occurs due to death of bread earner of the family. Counsel for the appellant in support of his contention, has placed objectives of the scheme and submitted that the impugned judgment is not in accordance with law laid down by the Apex Court in the case of U.K. Nagpal Vs. State of Haryana and others ( JT 1994(3) SC-525) and on that basis objectives of the bank were framed, therefore, offer of compensation under the new scheme was valid as approval on the respondents' application had not attained finality. It is submitted that competent authority to grant sanction for compassionate appointment under prevalent scheme vide clause 6 was the Chairman and Managing Director or General Manager as the case may be and no such sanction or approval was ever granted by the aforesaid competent authority in the matter.
Counsel for the appellant has also criticized applicability of the judgment rendered in the case of State Bank of India and others Vs. Jaspal Kaur (supra) by the writ Court in the present case, saying that facts and circumstances of the case in hand, are totally different.
At this stage we may clarify, it is not that the new scheme does not contain provision for compassionate appointment. Clause 11 of the new scheme appended as annexure no. 2, does contemplate compassionate appointment but subject to fulfillment of certain conditions stipulated therein, relevant extract of which reads thus:
11.Appointment on compassionate grounds:
In cases covered by para 3(B) above, the bank may at its discretion consider giving employment to the bank employee's widow/widower, son (including legally adopted son), unmarried daughter (including legally adopted unmarried daughter), brother or sister or any other close relative nominated by the widow/widower on whom she/he will be wholly dependent, in exceptional cases, after examining each case on its merit like prescribed age, qualification, income of the family, the size of the family, the assets and liabilities of the family and other relevant parameters after being fully satisfied about genuineness of the case, subject to the following conditions:
Further, clause 13 of the new scheme is also relevant for the purposes of the present case, which provides thus:
" 13. Effective date:
I.The Scheme will come into force with retrospective effect from 31.7.2004 and all applications pending as on 31.7.2004 shall be considered in accordance with the revised scheme. Any application disposed of prior to 31.7.2004 and any order passed thereon shall not be reopened. However, the provisions of Paragraph 9 above is effective from date of approval of the Board for modification (i.e. 6.9.2008) and any application already disposed of and any order passed thereon shall not be reopened.
In all cases death occurring after 31.7.2004 in the circumstances as in paragraph 3(B)may be dealt with according to this scheme."
Perusal of the aforesaid provision leads to the conclusion that cases in which death has occurred after 31.7.2004 are to be dealt with under the new scheme and not the cases in which death has occurred before 31.7.2004. In State Bank of India and another Vs. Raj Kumar (2010) 11 SCC-661, the Apex Court has clarified this position that when a scheme is abolished, any pending application seeking appointment under that scheme will also cease to exist, unless saved. It is not disputed that date of death of deceased employees in the present case is 14.8.2003 and 19.10.2002 i.e. before 31.7.2004 and hence as per the aforesaid highlighted provision of the new scheme coupled with the ratio laid in the aforesaid case, claim of the respondent is not to be subjected to the new scheme rather their case is saved to be dealt with under the earlier scheme providing for compassionate appointment.
It can also not be disputed that appointment on compassionate ground is an exception to normal mode of recruitment. In such appointments, the appointing authority is always vested with the power to relax certain requirements which are otherwise necessary in normal mode of recruitment.
The question therefore which arise in the aforesaid facts and circumstances, is when both the schemes contain provision for compassionate appointment, how can the appellant oppose the respondents' claim on the basis of new scheme particularly when the process of their appointment starting from the year 2002 in the form of application, option, interview, has attained the stage of approval at Headquarter level vide resolution 9.10.2004 appended as annexure no. 4 to the writ petition.
So far as the submission of learned counsel for the appellant that since it is a policy matter, the Court ought not to have interfered is concerned, suffice it to say that Court has not at all interfered with the policy. As a matter of fact both the schemes have been formulated by the appellant bank itself. But it needs to be added that once a policy is framed and is or had been in force, deviation therefrom would not be permissible. We are also not in agreement with the contention that ratio laid down by the Apex Court in State Bank of India Vs. Jaspal Kaur (supra) has erroneously been applied by the writ Court in the instant case.
For all the reasons stated above, while concurring with the conclusions drawn by the writ Court, in our considered view, no good ground exists for interference with the impugned judgment and order.
In the result, this intra Court appeal is sans merit and is accordingly dismissed.
Order Date :- 5.9.2014 SNT/