Hon'ble Dr. Vijay Laxmi,J.
(Delivered by Hon'ble Dr. Vijay Laxmi ,J.)
1. This special appeal has been filed against the judgment and order dated 25.04.2014 passed in Writ Petition No.2770 (S/S) of 2002 and judgment and order dated 27.10.2015 passed in Review Petition Defective No.101 of 2015 whereby the claim of the appellant for compassionate appointment in place of his mother was dismissed.
2. The appellant has claimed compassionate appointment in place of his mother, who was working as Class-IV employee in the Oriental Bank of Commerce, Branch Hazratganj, Nawal Kisore Road, Lucknow (hereinafter referred to as 'Bank') who died in-harness on 08.12.1995 leaving behind her two minor children, namely, Manish Kumar, appellant aged about 12 years and Km. Jyoti, her younger sister at the time of her death. The father of the appellant had already expired on 13.10.1990 much earlier to the death of late Smt. Jayanti, mother of the appellant. The appellant along with his sister had been brought up under the guardianship of their maternal grandfather. The appellant, after attaining the age of majority, moved an application on 30.08.2001 seeking for compassionate appointment.
3. Learned counsel for the appellant argued that action of the bank in turning down the claim of the appellant was totally against Article 14 and 21 of the Constitution of India. 2 Though the compassionate appointment was not a right but for minimum requirement of human life, the appointment of the appellant was very much required in the facts and circumstances of the case. The fundamental rights guaranteed under Article 21 of the Constitution of India guaranteeing the right to life and live with dignity neither can be diluted nor circumvented by the scheme or statutory provision. The appellant was hardly 12 years of age and his mother who was sole bread earner of the family died and admittedly when he became major after 5 years, just after attaining the age of 18 years, he applied for appointment on the compassionate ground. Learned counsel for the appellant contends that the order was passed by the respondent-bank without considering the relevant facts about the size of the appellant's family/employment status of his family members and sources of their income, liabilities and expenses and the decision of the bank rejecting the case of the appellant for compassionate appointment is arbitrary. It was submitted that the case of the appellant ought to have been considered in the light of the Scheme `Dying in Harness Scheme' which was then in vogue and the action of the bank is just contrary to the justice, equity and good conscience and is liable to be set aside .
4. Per contra, learned counsel for the respondent-bank has vehemently opposed the claim of the appellant alleging that the claim of the appellant had been turned down on the basis of bank Circular No. Per/50/92/93/295, dated 25.11.1993 followed by the the subsequent Circular No. Per/53/75/96/104, dated 16.09.1996, which provided norms and guidelines for providing compassionate appointment to the dependents of deceased employee. According to these norms the dependent is required to apply for compassionate 3 appointment with the bank within the period of one year from the date of death of employee, and in case the dependent is minor, his/her case can be considered at the discretion of the bank within the period of four years from the death of employee which is lacking in this case. Beyond that period, the request for compassionate appointment cannot be considered in any case. Learned counsel for the respondent-Bank argued that the bank circulars dated 25.11.1993 and 16.09.1996 are binding in nature and no discretion is given to the bank authorities to deviate, modify or to create any distinction in the said schemes.
5. Learned counsel for the respondent-bank further contended that consideration for appointment on compassionate ground is contrary to Articles 14 and 16 of the Constitution of India and is only in the nature of concession and, therefore, it does not create a vested right in favour of the claimant/respondent. It was submitted that `Dying in Harness Scheme' is a non-statutory scheme and is in the form of a concession which does not create a vested right in favour of the claimant/appellant. The compassionate appointment is justified when it is granted to provide immediate succor to the deceased-employee and cannot be granted in view of passage of time. In support of his contention, learned counsel for the respondent placed reliance on the ruling of State Bank of India and another versus Raj Kumar reported in 2010 (11) 661 and Union of India versus R. Padmanabhan reported in (2003) 7 SCC 270 and argued that the appointment on compassionate ground cannot be made a source of recruitment. It is an exception to the general rule that the recruitment to public services should be on the basis of merit, by an open invitation providing equal opportunity to all eligible persons 4 to participate in the selection process. It was to enable the family of the deceased to get over for the sudden financial crisis.
6 . We have heard rival submissions of learned counsel for both the parties and perused the record. It would be appropriate here to mention the relevant provisions of the scheme of the bank dated 25.11.1993 which are reproduced below:
▪ "Para IV: Appointment under this scheme shall be made with the prior sanction of the General Manger. Requests for appointment under this scheme should be received by the bank within one year from the date of death of the employee concerned. This condition may be waived by the General Manger on the merits of each case.
▪ However, with the approval of the Board of Directors:
(a) In case the member of the family to be offered appointment is a minor, the offer of appointment may be kept open till the minor attains the age of majority provided a request to that effect is made to the bank within the stipulated time limit." ▪ (b) In case a member of the family sponsored for appointment desires to wait till he/she attains certain educational qualifications, his/her case may be considered provided the date so stipulated is within four years from the date of death of the employee."
7. The relevant provisions of the scheme of the bank dated 16.09.199 are reproduced as under:
3. Request for appointment under the scheme should be made at the earliest and in any case not later than one year from the date of death of the employee.
4. In case, the dependent is a minor or does not possess minimum qualification his/her case can be considered at the discretion of the bank within four years of the death of the employee to enable him/her or to qualify in terms of age and/or qualification provided that the dependent has made a request to the bank within one year of death of the employee.
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5. Compassionate appointment shall be considered by the bank only subject to the availability of vacancy.
8. Thus the schemes categorically provide that there were three per-requisite conditions under the scheme for compassionate appointment:- (i) an application by a dependent family member of the deceased employee within one year of death of the employee; (ii) fulfillment of the eligibility criteria prescribed under the scheme, for compassionate appointment; and (iii) availability of posts, for making such appointment. According to the respondent bank the said three conditions were not fulfilled by the appellant hence his claim was rightly rejected.
9. Admittedly, the mother of the appellant was employed in the Oriental Bank of Commerce, Branch Hazratganj as class-IV employee who died on 08.12.1995 leaving behind her two minor children, namely, Manish Kumar, appellant aged about 12 years and Km. Jyoti aged about 10 years. The father of the appellant had expired earlier on 13.10.1990. It is contended by learned counsel for the appellant that it is because of death of both father and mother the appellant could move application for the first time on 30.8.2001 after attaining age of majority by which time he had passed the Junior High School examination.
The bank has scrutinized the claim of the appellant and wrongly rejected the same vide order dated 05.10.2001 observing that the appellant had moved the application for compassionate appointment on 30.08.2001 i.e after lapse of about 6 years from the date of death of the employee i.e. 08.12.1995 thus the case of the appellant did not fall within the four corners of the schemes of the bank.
10. The learned single Judge who heard the writ petition 6 dismissed the same by an order dated 24.04.2014 holding that the concept of compassionate appointment has been recognized as an exception to the General Rule carved out in the interest of justice, in certain exigencies, by way of a policy of an employer, which partakes the character of the service rules. In this regard, the learned single Judge placed reliance on several decisions of the Hon'ble Supreme court and dismissed the Writ Petition. Aggrieved by such order, the appellant has filed the instant Appeal.
It is seen that two reasons have been assigned for rejecting the appellant's request. Thus the two points that emerge for consideration, are as follows:
(a) Whether the application for appointment on compassionate grounds can be entertained even if not made within the stipulated period of four years?
(b) Whether the application for appointment on compassionate grounds was not in time?
11. The issue as to whether an application made after 4 years can be considered or not, has come up for consideration in number of cases before High Court and the Honourable Supreme Court where the findings have been given by the Courts that in case the appellant has not filed application seeking compassionate appointment within four years from the date of death of his father and that he has not completed 18 years of age within four years, these are not valid grounds to deny appointment on compassionate ground. Similar issue was considered by Madras High Court in the decision reported in T.Meer Ismail Ali v. The Tamil Nadu Electricity Board, 2004 (3) CTC 120 [F.M.Ibrahim Kalifullah,J (as he then was)]. In the said case the deceased Board employee 7 died on 13.04.1993 and the application submitted by one of his daughter on 05.08.1997 was rejected on the ground that she had not completed 18 years of age and after completing 18 years of age when an application was made on 04.07.2000 which was rejected on the ground that the application was not made within three years from the date when the Board Proceedings dated 13.10.1995 was issued. The Court considering the technical plea raised by the respondent Board set aside the said order and remitted the matter to pass fresh orders without reference to the objections already raised by the Board. The said order of the learned single Judge was challenged by the TNEB in W.A.No.4008 of 2004 before the First Bench of Madras Court (consisting of the Hon'ble Mr.Justice Markandey Katju,C.J. (as he then was) and N.V.Balasubramanian,J.) which dismissed the writ appeal on 01.12.2004. The respondents therein filed SLP No.6387 of 2005 against the said order which was also dismissed on 01.04.2005 by the Honourable Supreme Court and consequently the said writ appellant was given compassionate appointment.
12. Another Writ Petition in W.P.No.41459 of 2005 was considered by Madras High Court on the same set of facts. The said writ petition was allowed following the earlier order of the Division Bench of Madras High Court made in W.A.No.4008 of 2004 dated 01.12.2004 and the said decision is reported in Selvi R. Anbarasi v. Chief Engineer (Personnel), TNEB, Chennai, 2006 (2) MLJ 200. The said order was challenged by the TNEB before the First Bench in W.A.No.988 of 2006. However, the said appellant was given appointment on compassionate ground by implementing the order and therefore the writ appeal was dismissed as 8 infructuous on 15.09.2006 by recording the statement made by the Standing Counsel for the TNEB.
13. In W.P.No.21512 of 2003 one Indiraniammal challenged the rejection of compassionate appointment before Madras High Court on similar ground. The learned single Judge dismissed the writ petition by order dated 04.08.2003 against which W.A. No.3050 of 2003 was filed and the said writ appeal was allowed by the Division Bench (consisting of the Hon'ble Mr. Justice P. Sathasivam (as he then was) & S.K.Krishnan,J) by order dated 08.03.2005 following the earlier judgments as well as the Supreme Court Judgment reported in Balbir Kaur v. Steel Authority of India Ltd., (2000) 6 SCC 493. Against the said decision Civil Appeal No.2039 of 2006 was filed by the respondent Board which was dismissed by the Honourable Supreme Court on 30.03.2010.
14. Dismissal of another W.P.No.775 of 2004 by order dated 29.01.2005 of Madras High Court on the ground of delay was considered by the Division Bench (F.M.Ibrahim Kalifullah,J. (as he then was) & P.Murugesan,J) in W.A(MD).No.29 of 2006 and by order dated 27.06.2006 the Division Bench allowed the writ appeal and directed to give compassionate appointment to the younger son of the deceased Board employee, who died on 15.11.1996. The said order of the Division Bench was also challenged by the Board in SLP(C)No.15534 of 2007 which was also dismissed by the Apex Court on 08.04.2009.
15. In W.P.No.18575 of 2006 filed by P.Venkatesan, Madras High Court again considered similar issue and allowed the writ petition on 20.06.2006 by following earlier 9 orders. The said order was also challenged by the respondent in W.A.No.42 of 2007 and the Division Bench (D.Murugesan,J & K.Venkataraman,J) dismissed the writ appeal on 02.07.2009. The Board filed SLP(C)No.8305 of 2010 which was also dismissed by the Hon'ble Supreme Court on 06.07.2010. The said candidate viz., P.Venkatesan was given compassionate appointment by order dated 18.08.2010.
16. Similar issue came up for adjudication before High Court of Madras in J. Jeba Mary vs. The Chairman, Tamil Nadu Electricity Board reported in 2011 (3) LLN 405 (Mad.) which was considered by Mr. Justice N. Paul Vasanthakumar. The writ was allowed and the direction was given to give compassionate appointment to the dependent of the deceased employee. The judgment was confirmed by the the Apex Court.
17. From the above referred decisions passed in series of cases on the same ground, it is evident that on the similar grounds raised by the respondents that the appellant has not filed application seeking compassionate appointment within stipulated period from the date of death of his father and that he has not completed 18 years of age within stipulated period are not valid grounds to deny appointment on compassionate ground as according to appellant no one in his family was employed and the family of the appellant was in indigent circumstance even on that date. Therefore, when the family of the employee who died in harness is still suffering where no other member is employed, this Court as well as the Apex Court have always come to rescue of the applicant seeking appointment on compassionate grounds. Such applications can also be entertained in deserving cases and the said rule of 10 4 years can only be treated as a rule of thumb and cannot be strictly implemented in all cases.
18. In the instant case, it is not in dispute that the appellant was about 12 years of age when he lost his mother, he had lost his father earlier thus after completing 18 years of age he earned more an application for compassionate appointment only in the year 2001.The appellant is prosecuting the matter before the respondents right from August, 2001. Thus It cannot be held that the appellant was not diligent in seeking for compassionate appointment at the earliest point of time. In fact, immediately after attaining 18 years of age and also after qualifying himself, when the appellant came forward with the present application in 2001, in all fairness, the respondent should have considered the appellant's claim on merits who claimed that his sister was minor and, therefore, he was the only breadwinner of the family. In such circumstances, it was a deserving case where the respondent should have shown some compassion while considering the appellant application for compassionate appointment. Unfortunately, the respondent did not seem to have shown any compassion at all and mercilessly rejected the appellant's application on a hyper technical ground. It is not the case of the bank that the appellant family is having any other income to negate their claim for appointment on compassionate ground.
19. Now coming to the next question about request for appointment within one year of the death of the employee, it is not disputed that the application for appointment on compassionate grounds was made by the appellant on 30.08.2001. As per the then prevailing scheme of 1993, though the request for appointment was to be made within one year of the the death of the employee, but it was due to 11 peculiar circumstances of this case that the appellant could submit his application for the first time on 30.08.2001 i.e. after about more than 5 years after the death of the employee, since the appellant had lost both his father in 1990 and his mother in 08.12.1995. Thus under such circumstances no adverse order could be passed against the appellant on this ground. Moreover, when a person cannot be employed in government service before completion of 18 years of age, he could not also make an application during his period of minority,
20. It appears that the appellant has immediately submitted an application on 30.08.2001 on attaining majority. The respondent bank has taken a hyper technical stand that the application must have been submitted only within one year of the the death of the employee and the application submitted after more than 5 years is invalid. This court is rejecting the contention of the respondent bank. The intention of the said bank scheme is to alleviate the distress of the bereaved family. The purpose of the scheme is to see that the cry of the family for bare subsistence would not go unheeded on certain technicality. Ours is a welfare state. The judgment, therefore, are meant to highlight the constitutional philosophy of socialistic one and to make an attempt to give the philosophy a reality of flesh and blood.
21. Now regarding the applicability of the bank scheme of 1993 or 1996, the appellant's mother died in 1995 while she was serving as a class IV employee in the respondent-bank and the appellant applied for compassionate appointment. The respondent-bank rejected the appellant's claim. However, the cause of action to be considered for compassionate appointment arose when the bank scheme of 1993 12 was in force. As per the judgment of Supreme Court in Bank of India & Ors. vs. Jaspal Kaur, (2007) 9 SCC 571 , the claim cannot be decided as per 1996 Scheme. The scheme of 1996 being an administrative or executive order cannot have retrospective effect so as to take away the right accrued to the appellant as per scheme of 1993.
22. We are, therefore, of the view that the appellant's case deserves consideration inasmuch as he had diligently made a claim after attaining the age of 18, in the year 2001 and in such circumstances, rejection of his application on the ground that it was not made within four years was not justified.
23. In view of the above, this Court is of the view that the application made on 30.08.2001 is well within time and the orders impugned are, therefore, set aside and the respondent bank is directed to consider the appellant's application on merits and provide necessary relief to the appellant in accordance with the rules relating to compassionate appointment within four weeks from today.
24. With the above direction, the appeal is allowed. Order Date :- 27/9/2016 KR