Heard Sri Arvind Kumar Vishwakarma, learned counsel for the petitioner and Sri Vinay Shanker, learned counsel for the respondent-bank.
The present writ petition has been filed with following prayers:-
"i. A writ, order or direction in the nature of mandamus thereby directing the opposite parties to appoint the petitioner on the post of Sweeper on compassionate grounds under Rule 5 (1) Proviso to Dying in Harness Rules.
ii. A writ, order or command or direction in the nature of certiorari quashing impugned order dated 05.10.2001 contained in Annexure No. 10 to this writ petition.
iii. Any other writ, order or direction to which this Hon'ble Court may deem fit and proper in the circumstances of the case also be passed;
iv. Entire costs of this writ petitioner be allowed to the petitioner."
This Court vide order dated 18.11.2011 had allowed the amendment application and following reliefs have been added:-
II-a:- Issue a writ or direction in the nature of quashing the aforesaid para 4 of the circular number per/53/75/96/184 dated 16 September 1996 issued by Oriental Bank of Commerce under the authority of Government of India undertaking Head Office E-Block Harsha Bhawan, Connaught Place New Delhi-110001 contained as Annexure No. CA-1 to the counter affidavit.
III-b: Issue a writ or direction in the nature of mandamus commanding the opposite parties to re-consider with regard to be given the appointment on the post of Sweeper as Class-IVth to the petitioner according to law on the compassionate ground under the dying in harness rule 1975 with consequential benefit.
The brief facts which give rise to the present writ petition are as follows:-
The petitioner has claimed compassionate appointment in place of her mother, who was working as Class-IV employee in the Oriental Bank of Commerce, Branch Hazratganj, Nawal Kisore Road, Lucknow (hereinafter referred as 'bank') and she died in harness on 08.12.1995 leaving behind her two minor children namely Manish Kumar (petitioner) aged about 12 years and Km. Jyoti aged about 1 year at the time of her death. Father of the petitioner had already expired on 13.10.1990 much earlier to the death of late Smt. Jayanti, mother of the petitioner. It has also been averred in the writ petition that the petitioner alongwith, his sister had been brought up under the guardianship of their maternal grand-father. The petitioner after attaining the age of majority moved an application on 30.08.2001 (annexure No. 7 to the writ petition) seeking for compassionate appointment. The said representation had been made with claim that his mother was permanent employee of the bank and once he has attained the age of majority he has every right to be given appointment.
A bare perusal of the averment made in the writ petition, it is apparent that the petitioner has made his claim on the basis of U.P. Recruitment of Government Servant Dying in Harness Rules, 1974. No pleadings have been made regarding any provisions for compassionate appointment in the bank, instead complete claim had been made on the basis of 1974 rules.
Learned counsel for the petitioner states that the claim of the petitioner had been turned down on the basis of bank circular No. Per/50/92/93/295 dated 25.11.1993 followed by the subsequent circular No. per/53/75/96/104 dated 16.09.1996, which provides norms and guidelines for providing compassionate appointment to the dependents of deceased employee. If the dependent applies for compassionate 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. Beyond that period, the request for compassionate appointment cannot be considered in any case.
The relevant clauses of the bank scheme, known as scheme for appointment of the dependent deceased employee on compassionate ground dated 16.09.1996 is 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.
5. Compassionate appointment shall be considered by the bank only subject to the availability of vacancy.
Learned counsel for the petitioner states that the claim of the petitioner had to be considered in the light of bank circular dated 25.11.1993 but, in most arbitrary manner, the bank has rejected the claim of the petitioner on the basis of subsequent bank circular dated 16.09.1996 which had amended the scheme. The subsequent bank circular had been admittedly issued after demise of the deceased and the same was not applicable in the case of the petitioner and his case had to be considered in the light of earlier bank circular dated 25.11.1993. Learned counsel for the petitioner has relied his case on the basis of State of Manipur Vs. Rajaodin 2003 (7) SCC 511. Learned counsel for the petitioner also contended that the subsequent amendment in the scheme is totally against Article 14 and 21 of the Constitution of India. Whereas the compassionate appointment is not a right but for minimum requirement of human life, the appointment was very much required under the facts and circumstances of the case. He has also contended that fundamental rights protected under Article 21 of the Constitution of India neither can be diluted nor circumvented by a scheme or statutory provision. Admittedly, the petitioner was hardly 12 years of age, when 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, applied for appointment on the compassionate ground and the action of the bank is just contrary to the bank scheme and is liable to be set aside.
Learned counsel appearing for respondent-bank has vehemently opposed the claim of the petitioner specially on the ground that the bank circular dated 25.11.1993 and subsequent bank circular dated 16.09.1996 which provides the norms and guidelines for providing compassionate appointment to the dependent of the deceased employee are binding in nature and there is no discretion given to the bank management to deviate, modify or to create any distinction in the said schemes. Meaning thereby any request for compassionate appointment could not be considered beyond the purview of Item Nos. 3, 4 & 5 of the scheme dated 16.09.1996. It is relevant to reproduce the provisions of the earlier scheme dated 25.11.1993:-
"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."
I have heard rival submissions of learned counsel for the parties and perused the record. It is admitted case that the mother of the petitioner who was class-IV employee died on 08.12.1995 and that point of time she had left two minor children, namely, Manish Kumar (petitioner) aged about 12 years and Km. Jyoti aged about 1 year as legal heirs of the deceased employee. It has also been averred in the affidavit that father of the petitioner had also expired on 13.10.1990 and both the minor children of the deceased employee had been brought up by their maternal grand-father. The petitioner after attaining the age of majority had moved an application on 30.08.2001, after passing his junior high school examination. The petitioner had requested that he had attained majority and he also had liability of looking after his minor sister aged about 7 years and had no source of livelihood. He had every right to get compassionate appointment in place of his mother.
In the present matter, the whole claim has been set out on the basis of rules of U.P. Recruitment of Dependents of Government Servant Dying in Harness Rules, 1974 and finally through an amendment certain other grounds have also been added and the bank scheme has also been brought on record. The bank has scrutinized the claim of the petitioner and the same was rejected vide order dated 05.10.2001. The appointment of the dependents of the deceased employee on compassionate ground could be considered on the basis of bank circular dated 25.11.1993, with certain conditions, as much as, requests for appointment under this scheme should be received by the bank within one year from the date of death of concerned employee. This condition could be waived by the general manager on merit of each case. It has also been provided that in case, the member of the family to be offered appointment is a minor, the offer of appointment may be kept open for the minor till the minor attains age of majority, provided a request to that effect is made to the bank within the stipulated time limit. The paragraph no. 4 of the scheme clearly provides that the bank must receive request for appointment under the said scheme, within one year from the date of death of employee concerned.
In the present case, admittedly, the petitioner had moved an application on 30.08.2001 i.e. after lapse of about 6 years' time from the death of employee i.e. 08.12.1995, and as per the then prevailing scheme i.e. in the year 1993, the request for appointment under the said scheme could be entertained by the bank within one year from the date of death of employee, whereas in the present case, the application was moved for the first time, for employment, on 30.08.2001.
Learned counsel for the respondent has relied on the judgment of Apex Court in State Bank of India & another Vs. Raj Kumar 2010 (11) 661. The relevant paragraph Nos. 8, 9, 10, 11 & 12 is quoted below:-
"8. It is now well settled that appointment on compassionate grounds is not a source of recruitment. On the other hand it is an exception to the general rule that recruitment to public services should be on the basis of merit, by an open invitation providing equal opportunity to all eligible persons to participate in the selection process. The dependants of employees, who die in harness, do not have any special claim or right to employment, except by way of the concession that may be extended by the employer under the Rules or by a separate scheme, to enable the family of the deceased to get over the sudden financial crisis. The claim for compassionate appointment is therefore traceable only to the scheme framed by the employer for such employment and there is no right whatsoever outside such scheme. An appointment under the scheme can be made only if the scheme is in force and not after it is abolished/withdrawn. It follows therefore that when a scheme is abolished, any pending application seeking appointment under the scheme will also cease to exist, unless saved. The mere fact that an application was made when the scheme was in force, will not by itself create a right in favour of the applicant.
9. Normally the three basic requirements to claim appointment under any scheme for compassionate appointment are: (i) an application by a dependent family member of the deceased employee; (ii) fulfillment of the eligibility criteria prescribed under the scheme, for compassionate appointment; and (iii) availability of posts, for making such appointment. If a scheme provides for automatic appointment to a specified family member, on the death of any employee, without any of the aforesaid requirements, it can be said that the scheme creates a right in favour of the family member for appointment on the date of death of the employee. In such an event the scheme in force at the time of death would apply.
10. On the other hand if a scheme provides that on the death of an employee, if 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 fulfill 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."
In the present matter, it is also relevant whether the bank scheme dated 29.11.1993 would be applicable or 16.09.1996. In the context, it would be useful to refer the decision of the Apex Court in Union of India Vs. R. Padmanabhan (2003) 7 SCC 270. Relevant Paragraph No. 8 is reproduced hereunder:-
"8......That apart, being ex gratia, no right accrues to any sum as such till it is determined and awarded and, in such cases, normally it should not only be in terms of the Guidelines and Policy, in force, as on the date of consideration and actual grant but has to be necessarily with reference to any indications contained in this regard in the Scheme itself. The line of decisions relation to vested rights accrued being protected from any subsequent amendments may not be relevant for such a situation and it would be apposite to advert to the decision of this Court reported in State of Tamil Nadu vs. Hind Stone and Ors. - 1981 (2) SCC 205. That was a case wherein this Court had to consider the claims of lessees for renewal of their leases or for grant of fresh leases under the Tamil Nadu Minor Mineral Concession Rules, 1959. The High Court was of the view that it was not open to the State Government to keep the applications filed for lease or renewal for a long time and then dispose them of on the basis of a rule which had come into force later. This Court, while reversing such view taken by the High Court, held that in the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application, despite the delay, if any, involved although it is desirable to dispose of the applications, expeditiously."
The Hon'ble Apex Court had also considered this aspect in Kuldeep Singh Vs. Govt. of NCT of Delhi 2006 (5) SCC 702, which considered the question of grant of liquor vendor licences and held that where the applications required processing and verification the policy which should be applicable is the one which is prevalent on the date of grant and not the one which was prevalent when the application was filed. This Court clarified that the exception to the said rule is where a right had already accrued or vested in the applicant, before the change of policy.
The Hon'ble Apex Court had also considered identical controversy in Sanjay Kumar Vs. State of Bihar & others 2000 (iii) LLJ suppl.
"1. The petitioner was 10 yeas old when his mother died, while she was working as a Excise Constable. The petitioner made an application on 2.6.1988, soon after the death of his mother, seeking compassionate appointment. That was rejected on 10.12.1996, as time-barred.. A fresh application was filed on 26.12.1996 and that was also rejected on 21.4.1997 for the same reason. Against the said order, the petitioner moved the High Court. The learned Single Judge of the High Court dismissed the writ petition on 24.8.1999 and the said judgment was affirmed by the Division Bench on 10.3.2000. Against that order that this SLP has been preferred.
2. Learned Senior counsel appearing on behalf of the petitioner has placed strong reliance on the decision of a learned Single Judge of the Patna High Court in Chandra Bhushan v. State of Bihar 1997(1) PLJR 626. Learned Senior counsel points out that it was held in the case that an applicant's right cannot be defeated on the ground of delay caused by authorities which was beyond the control of the applicant. Learned senior counsel further points out that instead of following the above judgment, the same learned Judge has now held on 21.4.1997 that the application is time-barred. Learned Counsel has placed before us a judgment of this Court in Director of Education and Anr. v. Pushpendra Kumar and Ors. 1998 (2) PLJR (SC) 181. He submits that, in this case, a direction was given to create supernumerary posts.
3. We are unable to agree with the submissions of the learned senior counsel for the petitioner. This Court has held in a number of cases that compassionate appointment is intended to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the bread earner who had left the family in penury and without any means of livelihood: In fact such a view has been expressed in the very decision cited by the petitioner in Director of Education and Anr. v. Pushpendra Kumar and Ors. (Supra). It is also significant to notice that on the date when the first application was made by the petitioner on 2.6.1988, the petitioner was a minor and was not eligible for appointment. This is conceded by the petitioner. There cannot be reservation of a vacancy till such time as the petitioner becomes a major after a number of years, unless there is some specific provisions. The very basis of compassionate appointment is to sec that the family gets immediate relief.
4. We are, therefore, unable to agree with the view expressed in Chandra Bhushan's case (supra).
5. For the reasons stated above, we hold that there are no merits in this SLP and the same is accordingly dismissed."
The Hon'ble Apex Court in number of cases has clearly held that the compassionate appointment is intended to enable the family of the deceased employee to tide over the sudden crises resulting due to death of bread earner who had left the family penury and without any means of livelihood. It is also well settled that appointment on compassionate ground is not a source of recruitment to public services and should be on the basis of merit by an open invitation providing equal opportunity to all eligible persons to participate in the selection process. The dependents of employee, who die in harness, do not have any special claim or right to employment, except by way of concession, that may be extended by the employer under the rules or by a separate scheme, to enable the family of the deceased to get over the sudden financial crises.
The claim of the compassionate appointment is therefore, traceable only to the scheme framed by the employer for such appointment and there is no right whatsoever outside such scheme. In the present matter, admittedly, the bank provides the compassionate employment but in the present matter, it is apparent that the case of the petitioner does not fall in either of the schemes. The schemes also categorically provide that management of the bank or board of director cannot enlarge the scope of the said schemes. The mere fact that an application was made when the scheme was in force will not by itself create right in favour of the applicant. There are other pre-requisite conditions under the scheme. Normally the three basic requirements to claim appointment under any scheme for compassionate appointment are: (i) an application by a dependent family member of the deceased employee; (ii) fulfillment of the eligibility criteria prescribed under the scheme, for compassionate appointment; and (iii) availability of posts, for making such appointment. If a scheme provides for automatic appointment to a specified family member, on the death of any employee, without any of the aforesaid requirements, it can be said that the scheme creates a right in favour of the family member for appointment on the date of death of the employee. In such an event the scheme in force at the time of death would apply.
In the present case, the bank scheme regarding compassionate appointment is categorical and does not confer any vested right in favour of the petitioner and the case of the petitioner is not covered in either of the bank scheme dated 25.11.1993 or 16.09.1996.
For the reasons stated above, I do not find any merit in the case and the same is accordingly dismissed.
Order Date :- 25.4.2014 Jaswant