Hon'ble Mahesh Chandra Tripathi,J.
(Per Hon'ble M.C. Tripathi, J.)
1. Gramin Bank of Aryavart (earlier known as 'Shreyas Gramin Bank) through its Chairman and the General Manager, Gramin Bank of Aryavart are before this Court assailing the validity of the judgement and order dated 22.9.2010 passed by learned Single Judge of this Court in Writ A No.43145 of 2007 (Smt. Kasturi Devi vs. Shreyas Gramin Bank and ors) wherein he had proceeded to allow the writ petition and the appellant-bank was directed to forthwith re-consider the claim for compassionate appointment within two months.
2. The factual situation that is accepted before us is that husband of the petitioner-respondent was working as a Class-IV employee under the appellant-bank and he died in harness on 27.9.2005. Thereafter being as widow of late Lala Ram, the petitioner-respondent had proceeded to move an application for compassionate appointment on 8th October, 2005. The claim of the petitioner was rejected on 7.12.2010 precisely on the ground that in view of the new Scheme having been enforced, the petitioner-respondent is only entitled for ex-gratia lump sum amount which satisfies her claim, and as such, she was not entitled for compassionate employment. The said order was assailed before learned Single Judge on the ground that in the case of State Bank of India and others Vs. Jaspal Kaur reported in JT 2007 (3) SC 35, Hon'ble Apex Court had held that it is the scheme, which was applicable at the time of moving of the application, which has to be enforced and consequently the claim of the petitioner-respondent was liable to be considered for compassionate appointment. It had been pleaded before learned Single Judge that in view of Scheme, which was prevailing at the time of death of her husband, she was entitled for being considered for compassionate appointment and subsequent Circular issued by the appellant-bank would not divest her legitimate expectation for compassionate employment. Therefore, it was urged that she was entitled for consideration on the basis of the then existing Rules and the appellant-bank could not reject her claim on the basis of subsequent Circular.
3. It has been argued by learned counsel for the appellant-bank that the petitioner was not entitled for consideration for compassionate employment in terms of the new Scheme as per the decision taken by the Bank. Reliance had also been placed to Clause 13 of the Model Scheme for payment of ex-gratia (lum sum amount), which recites that if any application is pending as on the effective date on the promulgation of the new Scheme, which is admittedly 21.10.2006, the same will be governed by the new Scheme and it had also been pleaded that compassionate employment is not vested right and as such, the date of consideration will be an appropriate date. Consequently the Scheme applicable on such date would be the criteria for consideration of such claim. The appellant-bank had placed reliance on the judgement passed by Hon'ble Supreme Court in State of Kerala Vs. B-Six Holiday Resorts (P) Ltd. reported in 2010 (5) SCC 186, in which it was held in paragraph 22 as follow:-
" Where the rules require grant of a licence subject to the fulfilment of certain eligibility criteria either to safeguard public interest or to maintain efficiency in administration, it follows that the application for licence would require consideration and examination as to whether the eligibility conditions have been fulfilled or whether grant of further licences is in public interest. Where the applicant for licence does not have a vested interest for grant of licence and where grant of licence depends on various factors or eligibility criteria and public interest, the consideration should be with reference to the law applicable on the date when the authority considers applications for grant of licences and not with reference to the date of application."
4. In this background, learned Single Judge had proceeded to allow the writ petition filed by the petitioner-respondent on the basis of decision taken by Hon'ble Apex Court in State Bank of India and others Vs. Jaspal Kaur (supra). The relevant part of the judgement is reproduced as follows:-
"In view of the ratio of the said decision it is clear that the applicability of the circular which was not in existence at the time of moving of the application, is not relevant. The judgement in the Case of State of Kerala (supra) as relied by the respondents' counsel is in relation to grant of liquor licence which is a judgment on a different proposition of law. It would not be applicable to the present controversy when the judgment directly in issue holds that the benefit of compassionate appointment is available to the petitioner.
The question as to whether a person has a vested right for compassionate appointment is no longer res-integra. The right has limited only to the extent of consideration in accordance with rules. The authority has discretion but the said discretion is also circumscribed by rules.
Accordingly the authority has to exercise a judicious discretion and not a whimsical decision so as to frustrate the very purpose of the rule. Reference may be had to the decision of the Apex Court reported in 2006 (10) SCC 1 paragraphs 26 to 35, Reliance Airport Developers (P) Ltd. Vs. Airports Authority of India and others.
In the instant case the authority has proceeded to reject the claim of the petitioner on the ground that in view of the new scheme having been enforced the petitioner is entitled only to ex gratia payment which satisfies her claim. The rejection therefore is not inconsonance with the law laid down in the case of Jaspal Kaur (Supra) as pointed out herein above. The petitioner in my considered opinion has a right to be considered for compassionate appointment in accordance with the provisions that were then existing.
Accordingly the impugned order dated 07.12.2006 is quashed. The writ petition is allowed. The respondent Bank is directed to forthwith re-consider the claim for compassionate appointment in view of the observations made herein above and issue necessary orders within two months from the date of production of a certified copy of this order before the concerned authority.
5. Shri Amrish Sahai, learned counsel appearing for the appellant-bank submitted that it is settled that an application seeking benefits of compassionate appointment must be decided in accordance with the law/rules/regulations as prevailing on the date of consideration of the application and when the petitioner-respondent had proceeded to move an application on 8.10.2005 for compassionate appointment, she did not have any vested right in her favour to obtain appointment on compassionate ground precisely in the backdrop that by the Circular of Indian Banks Association dated 31.7.2004 appellant-bank had already taken a policy decision for doing away with the system of compassionate appointment and the same was eventually adopted by the appellant-bank on 27.10.2006. Even though the Circular of Indian Banks Association was moved on 31.7.2004 and the final adoption took place on 27.10.2006, the delay was occurred on account of clarification, which was sought from the concerned Ministry of Government of India to the extent, as to whether the said guidelines would also apply to the Regional Rural Banks created under powers vested in Rural Bank Act, 1976. Once the Apex Body i.e. Indian Banks Association framed a Model Scheme for payment of ex-gratia for all Public Sector Banks in pursuance of the decision taken by the Government of India, then the same had binding effect. Therefore, at the time of submission of her application, the policy decision was already taken by the Indian Banks Association and the same was widely circulated to all Public Sector Banks alongwith Model Scheme for payment of ex-gratia in lieu of compassionate employment.
6. Learned counsel appearing for the appellant-bank has also placed his reliance on the judgments passed by this Court in Abhimanyu Ratan Bhardwaj vs. State of UP and ors 2006 (1) ADJ 440 (All. DB; Special Appeal No.840 of 2004 (Vidyavrat Rajpoot vs. Mukhya Vittiya Adhikari Zila Parishad & ors); Writ Petition No.24066 of 2000 (Ashutosh Arya vs. the Indian Bank and ors) decided on 27.7.2012; Special Appeal No.1511 of 2012 (Ashutosh Arya vs. the Indian Bank) decided on 2.4.2014; Special Appeal No.954 of 2009 decided on 14.7.2009 and Special Appeal Defective No.884 of 2015 (State of UP & 3 ors vs. Mahaveer Singh and 2 ors) decided on 12.1.2016. He has also relied upon judgments of Supreme Court in LIC of India vs. Asha Ram Chandran Ambedkar 1994 AIR (II) SC 2148; General Manager (D & PB) & ors vs. Kunti Tiwari & ors (1994) 2 SCC 418; Umesh Kumar Nagpal vs. State of Haryana & ors (1994) 4 SCC 138; Punjab National Bank and ors vs. Ashwani Kumar Taneja (2004) 7 SCC 271; Union of India and ors vs. M.T. Latheesh (2006) 7 SCC 350; State Bank of India and another vs. Raj Kumar 2010 LawSuit (SC) 1214; Civil Appeal No. 6348 of 2013 (MGB Gramin Bank vs. Chakrawati), arising out of SLP (C) No.13957/2010, decided on 7 August, 2013 and Canara Bank vs. M. Mahesh Kumar (2015) 7 SCC 412 in support of his submission.
7. On the other hand, it has been submitted by Shri Bharat Pratap Singh, appearing on behalf of the petitioner-respondent that learned Single Judge has rightly allowed the writ petition relying on the judgement in State Bank of India and ors vs. Jaspal Kaur (supra) which holds the field and no interference is required at this stage and the petitioner has already suffered a lot. He has placed reliance on the judgment in Canara Bank and another vs. M. Mahesh Kumar (2015) 7 SCC 412 in which it was held by Hon'ble Supreme Court that the rescission of a scheme for compassionate appointment will not affect an application submitted when the scheme was in force and which was held to be governed by the scheme then prevailing on the date of the application.
8. Heard rival submissions and perused the record.
9. This much is reflected from the record in question that the Scheme for compassionate appointment was introduced in the erstwhile Aligarh Gramin Bank as per the directives issued by the Government of India vide Circular No.71/82 dated 23.9.1982. The features of the Scheme are as under:-
"SCHEME FOR APPOINTMENT OF DEPENDENTS OF DECEASED EMPLOYEES ON COMPASSIONATE GROUNDS IN REGIONAL RURAL BANKS:
1. Short title and commencement:-
This scheme may be called "scheme for appointment in clerical and sub-ordinate cadres of dependents of deceased employees of Regional Rural Banks on compassionate grounds. The scheme shall come into force from 1.10.1982.
2. Definition:
a) In this scheme, unless the context otherwise requires "Bank" means Aligarh Gramin Bank.
b) "Board" means The Board of Directors of Aligarh Gramin Bank.
c) "Chairman" means The Chairman of the Board of Directors.
d) "Employees" means a regular employee whether in the sub-ordinate, clerical or Officers cadre, whether confirmed or on probation and whether working full time or part time but will not include temporary or casual employee.
e) "Dependent" means a widow, a son, a daughter, a brother, a sister of the deceased employee or any other close relative nominated by the widow when deceased employee has left behind no children or his own eligible for appointment and on whom she will be wholly dependent.
3. Appointment under the Scheme:
The Bank may, at its discretion, appoint in the Bank in any of the points mentioned the reunder the widow or a son or daughter of a deceased employee of the Bank or a near relative nominated by the widow on whom she will be wholly dependent and who would give in writing that he or she would look after the family of the deceased employee, if the widow or son or daughter or a near relative as the case may be, fulfills the criteria for appointment under the scheme, where the deceased employee was a widower or a bachelor, the bank may exercise its discretion in this regard, by making inquiries of the next elder in the family. The appointment under this scheme shall be made in clerical and sub-ordinate cadres which is as under:
1. Junior clerk cum Cashier
2. Junior Clerk cum Typist
3. Steno Junior cadre
4. Driver
5. Sweeper/ Messenger."
10. As per record this much is also reflected that a policy decision was taken by the Government of India to abolish the scheme of compassionate employment. The Indian Banks Association vide their letter dated 31.7.2004 had advised all Public Sector Banks a model scheme for payment of ex-gratia lump sum amount to the need of kin of the deceased employee in lieu of appointment on compassionate grounds. Certain clarification was also asked from the Government of India as well as NABARD whether the subsequent scheme was applicable to Regional Rural Banks. In this background, the General Manager, Canara Bank (A Government of India undertaking) had informed to the Chairman, Aligarh Gramin Bank, Aligarh on 26.2.2005 informing that IBA, vide their letter No.PD/CIR/76/532/153 dated 31.7.2004 had advised all Public Sector Banks a model scheme for payment of ex-gratia lump sum amount to the need of Kin of the deceased employee in lieu of appointment on compassionate grounds. Consequently, it had also been informed that the Bank had already proceeded for clarification with NABARD/Government of India in this regard to examine whether the guidelines applicable to RRBs need any change in the light of the scheme formulated by IBA for adoption by Public Sector Banks. Finally the Board of Directors of the appellant bank resolved that bank is permitted to implement the scheme for payment of ex-gratia (lump sum amount) in lieu of appointment on compassionate grounds as per Model Scheme of IBA on 27.10.2006 at Agenda No.52.
11. We have occasion to peruse the Model Scheme in question. Clause-11 of the said Scheme provides that the ex-gratia relief under the above Scheme is not an entitlement but may be granted at the sole discretion of the bank looking into the financial condition of the family and in deserving and eligibility cases only. Clause-13 of the Model Scheme clearly proceeds to make a mention that the Scheme will come into force from the date it is approved by the Board of the bank and all applications for compassionate appointment/grant of lump sum financial relief, if any, pending as on the effective date will be dealt with in accordance with the above Scheme approved by the Board. This much is also reflected from the record in question that subsequent Scheme, which was floated by IBM in the year 2004, was also accorded approval by the Board of Directors of the appellant bank on 27.10.2006. Clause-13 is quoted here under:-
"13. The Scheme will come into force from the date it is approved by the Board of the bank and all applications for compassionate appointment/grant of lump sum financial relief, if any, pending as on the effective date will be dealt with in accordance with the above Scheme approved by the Board."
12. The decision of the Supreme Court in Canara Bank (supra) dealt with a situation where there was a dying-in-harness scheme under a circular of the Canara Bank dated 8.5.1993. An employee of the bank died while on duty on 10.10.1998 and an application was made on 30.11.1998 by his heirs for seeking compassionate appointment. The bank rejected the application on 30.6.1999. Learned Single Judge of the Kerala High Court allowed the writ petition on 30.5.2003 with direction to the bank to reconsider the claim in accordance with law. The judgment of the learned Single Judge was upheld by a Division Bench of the Kerala High Court on 24.8.2006. By the time the Division Bench had decided the writ appeal, the scheme for compassionate appointment was scrapped and the Indian Bank Association formulated a scheme based on guidelines of the Union Government stipulating ex-gratia payment in lieu of compassionate appointment. A circular was issued on 14.2.2005 and it was asserted on behalf of the bank that as on the date of consideration of the application for compassionate appointment, there was no policy to provide such an appointment under the 1993 Scheme. The Supreme Court, in these facts, held that the father of the respondent had died in October, 1998 when the dying-in-harness scheme dated 8.5.1993 was in force and in fact, the bank had rejected the claim on 30.6.1999. Hence, the cause of action to be considered for compassionate appointment had arisen when the circular of 8.5.1993 was in force and the circular of 2005 being an administrative order was held not to have retrospective effect. Moreover, the Supreme Court also observed that the 2005 scheme which provided only for ex-gratia payment in lieu of appointment had in fact been substituted (during the pendency of the proceedings before the Supreme Court) in 2014 and a new scheme had been arrived at for providing compassionate appointment. Hence, as on the date of the judgment of the Supreme Court, the scheme in force provided for the grant of compassionate appointment. It was in these facts, which are clearly distinguishable, that the Supreme Court held that the Bank was not justified in contending that the application for compassionate appointment could not be considered in view of the passage of time.
13. In the present matter, what we find from the record in question that husband of the petitioner-respondent, who was working as Class-IV employee in the appellant-bank, died in harness on 27.9.2005. The petitioner-respondent moved an application for compassionate employment on 8.10.2005. Pending consideration of the above claim, a new scheme known as "Model Scheme for Payment of Ex-gratia (Lump Sum Amount) in lieu of Appointment on Compassionate Grounds in RRB" came into effect. On 13.7.2006 the Chief General Manager, National Bank for Agriculture and Rural Development informed the General Manager, all Sponsor Banks, RRB Division that the effective date for implementation of the scheme will be the date on which the Board of the individual RRB approves the same. As indicated in Para 13 of the Model Scheme, all applications for compassionate appointment/grant of lump sum financial relief, if any, pending as on the effective date will be dealt with in accordance with the above scheme approved by the bank. The Board of Directors of the appellant-bank accepted the said scheme on 27.10.2006 and resolved that the bank is permitted to implement the scheme for payment of ex-gratia (lump sum amount) in lieu of appointment on compassionate grounds as per Model Scheme of IBA. Consequently, the appellant-bank rejected the claim of the petitioner-respondent vide order/letter dated 7.12.2006.
14. Any scheme or rule, which comes is always prospective in nature unless the scheme itself provides that it is applicable from retrospective effect. In the said Scheme in question, there is specific provision that the Scheme will come into force from the date it is approved by the Board of the Bank and all applications for compassionate appointment/grant of lump sum financial relief, if any, pending as on the effective date, will be dealt with in accordance with the above Scheme approved by the Board. This much is also reflected from the record in question that there was no challenge to Clause-13 of the Scheme in question in the writ petition or any other circulars which require the appellant-respondent to decide the application as per the Scheme in question.
15. In Anand Kumar Sharma vs. State of U.P. and Ors 2014 (2) ADJ 742 (FB) a Full Bench of this Court held that the petitioner did not acquire any vested right on making the application on 25/7/2005 to get his application considered on the basis of the policy as existing on the date of making the application. The Government order dated 04/8/2006 was fully applicable w.e.f. 04/8/2006 and no error was committed by the Collector taking into consideration the policy dated 04/8/2006 when the application was rejected on 18/12/2006.
16. In Smt. Sushma Gosain & Ors. V. Union of India & Ors. (1989) 4 SCC 468, it was observed that in claims of appointment on compassionate grounds, there should be no 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.
17. In Umesh Kumar Nagpal V. State of Haryana & ors. (1994) 4 SCC 138, it was ruled that public service appointment should be made strictly on the basis of open invitation of applications and on merits. The appointment on compassionate ground cannot be a source of recruitment. It is merely an exception to the requirement of law keeping in view 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. Such appointments on compassionate ground, therefore, have to be made in accordance with Rules,Regulations or administrative instructions taking into consideration the financial condition of the family of the deceased. This favorable treatment to the dependent of the deceased employee must have clear nexus with the object sought to be achieved thereby, i.e. relief against destitution. At the same time, however, it should not be forgotten that as against the destitute family of the deceased, there are millions and millions of other families which are equally, if not more, destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectation, and the change in the status and affairs of the family engendered by the erstwhile employment, which are suddenly upturned.
18. In Life Insurance Corporation of India V. Asha Ramchandra Ambekar (Mrs.) & Anr. (1994)2 SCC 718, it was indicated 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 contemplate such appointments.
19. The Supreme Court in the case of Jagdish Prasad V. State of Bihar and another reported in (1996) 1 SCC 301 dismissing the appeal filed by the son of deceased employee held in paragraph 3 as under:
"3. It is contended for the appellant that when his father died in harness, the appellant was minor; the compassionate circumstances continue to subsist even till date and that,therefore, the court is required to examine whether the appointment should be made on compassionate grounds. We are afraid, we cannot accede to the contention. The very object of appointment of a dependent of the deceased employees who die in harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earning member of the family. Since the death occurred way back in 1971, in which year the appellant was four years old, it cannot be said that he is entitled to be appointed after he attained majority long thereafter. In other words,if that contention is accepted, it amounts to another mode of recruitment of the dependent of a deceased Government servant which cannot be encouraged,de hors the recruitment rules."
20. In State of Haryana and Ors. Vs. Rani Devi and Anr (1996) 5 SCC 308 : AIR 1996 SC 2445), it was held that the claim of applicant for appointment on compassionate ground is based on the premise that he was dependent on the deceased employee. Strictly this claim cannot be upheld on the touchstone of Article 14 and 16 of the Constitution. However, such claim is considered reasonable as also allowable on the basis of sudden crisis occurring in the family of the employee who had served the State and died while in service. That is why it is necessary for the authorities to frame Rules, Regulations or to issue such administrative instructions which can stand the test of Articles 14 and16 . Appointment on compassionate ground cannot be claimed as a matter or right.
21. The Supreme Court in the case of Haryana State Electricity Board and another V. Hakim Singh reported in (1997) 8 SCC 85 has observed that If the family members of the deceased employee can manage for fourteen years after his death one of his legal heirs cannot put forward a claim as though it is a line of succession by virtue of a right of inheritance. The object of the provisions should not be forgotten that it is to give succor to the family to tide over the sudden financial crisis befallen the dependents on account of the untimely demise of its sole earning member.
22. Hon'ble Apex Court in the case of State of J. & K. vs. Sajad Ahmed Mir, 2006 AIR SCW 3708, has taken the view that compassionate appointment cannot be claimed as matter of right, at the cost of others. Normally, an employment in 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 except where compelling circumstances demand, such as, death of sole bread earner and likelihood of the family suffering because of the setback. Once it is proved that in spite of death of bread earner, the family survived and substantial period is over, there is no necessity to say 'goodbye' to normal rule of appointment and to show favour to one at the cost of interests of several others ignoring the mandate of Article 14 of the Constitution.
23. A Full Bench of this Court, while deciding Special Appeal No.356 of 2012 (Shiv Kumar Dubey vs. State of U.P. & others) and other connected cases, has formulated the principles governing appointments on compassionate grounds under the Dying in Harness Rules, 1974. The principles elucidated in para 29 of the judgment read as follows:-
"29. We now proceed to formulate the principles which must govern compassionate appointment in pursuance of Dying in Harness Rules:
(i) A provision for compassionate appointment is an exception to the principle that there must be an equality of opportunity in matters of public employment. The exception to be constitutionally valid has to be carefully structured and implemented in order to confine compassionate appointment to only those situations which subserve the basic object and purpose which is sought to be achieved;
(ii) There is no general or vested right to compassionate appointment. Compassionate appointment can be claimed only where a scheme or rules provide for such appointment. Where such a provision is made in an 26 C.M.W.P. No. 13102 of 2010 administrative scheme or statutory rules, compassionate appointment must fall strictly within the scheme or, as the case may be, the rules;
(iii) The object and purpose of providing compassionate appointment is to enable the dependent members of the family of a deceased employee to tide over the immediate financial crisis caused by the death of the bread-earner;
(iv) In determining as to whether the family is in financial crisis, all relevant aspects must be borne in mind including the income of the family; its liabilities, the terminal benefits received by the family; the age, dependency and marital status of its members, together with the income from any other sources of employment;
(v) Where a long lapse of time has occurred since the date of death of the deceased employee, the sense of immediacy for seeking compassionate appointment would cease to exist and this would be a relevant circumstance which must weigh with the authorities in determining as to whether a case for the grant of compassionate appointment has been made out;
(vi) Rule 5 mandates that ordinarily, an application for compassionate appointment must be made within five years of the date of death of the deceased employee. The power conferred by the first proviso is a discretion to relax the period in a case of undue hardship and for dealing with the case in a just and equitable manner;
(vii) The burden lies on the applicant, where there is a delay in making an application within the period of five years to establish a case on the basis of reasons and a justification supported by documentary and other evidence. It is for the State Government after considering all the facts to take an appropriate decision. The power to relax is in the nature of an exception and is conditioned by the existence of objective considerations to the satisfaction of the government;
(viii) Provisions for the grant of compassionate appointment do not constitute a reservation of a post in favour of a member of the family of the deceased employee. Hence, there is no general right which can be asserted to the effect that a member of the family who was a minor at the time of death would be entitled to claim compassionate appointment upon attaining majority. Where the rules provide for a period of time within which an application has to be made, the operation of the rule is not suspended during the minority of a member of the family."
24. In fact, as held by the Full Bench of this Court in Anand Kumar Sharma (supra), the mere making of an application would not confer an indefeasible or vested right for appointment on compassionate ground. A new Scheme for payment of ex-gratia in lieu of appointment on compassionate ground in RRBs came into effect on 31.7.2004 and the Board of Directors of appellant-bank accepted the said scheme on 27.10.2006 and as per Para-13 of the Scheme in question, all applications for compassionate appointment/grant of lump sum financial relief, if any, pending as on the effective date, will be dealt with in accordance with the above Scheme approved by the appellant-bank. Consequently the claim of the petitioner-respondent was rejected on 7.12.2006.
25. Learned Single Judge had observed in the impugned judgment dated 22.9.2010 that the petitioner has a right to be considered for compassionate appointment in accordance with the provisions that were then existing and the appellant-bank was directed to forthwith re-consider the claim of petitioner-respondent for compassionate appointment.
26. In A. Umarani v Registrar, Co-operative Societies & Ors., AIR 2004 SC 4504, Hon'ble Apex Court has held that the Courts should not exercise the extraordinary jurisdiction issuing a direction to give compassionate appointment in contravention of the provisions of the Scheme/Rules etc., as the provisions have to be complied with mandatorily and any appointment given or ordered to be given in violation of the scheme would be illegal.
27. The word ''vested' is defined in Black's Law Dictionary (6th Edition) at page 1563, as ''vested', fixed; accrued; settled; absolute; complete. Having the character or given in the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent. Rights are ''vested' when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent interest in property founded on anticipated continuance of existing laws, does not constitute vested rights.
28. In Webster's Comprehensive Dictionary (International Edition) at page 1397, ''vested' is defined as Law held by a tenure subject to no contingency; complete; established by law as a permanent right; vested interest. (Vide: Bibi Sayeeda v State of Bihar AIR 1996 SC 516; and J.S. Yadav v State of Uttar Pradesh (2011) 6 SCC 570) Thus, vested right is a right independent of any contingency and it cannot be taken away without consent of the person concerned. Vested right can arise from contract, statute or by operation of law. Unless an accrued or vested right has been derived by a party, the policy decision/ scheme could be changed. (Vide: Kuldip Singh v Government, NCT Delhi AIR 2006 SC 2652)
29. Hon'ble Apex Court considered various aspects of service jurisprudence and came to the conclusion that as the appointment on compassionate ground may not be claimed as a matter of right nor an applicant becomes entitled automatically for appointment, rather it depends on various other circumstances i.e. eligibility and financial conditions of the family, etc., the application has to be considered in accordance with the scheme. In case the Scheme does not create any legal right, a candidate cannot claim that his case is to be considered as per the Scheme existing on the date the cause of action had arisen i.e. death of the incumbent on the post. In State Bank of India & Anr. (supra), this Court held that in such a situation, the case under the new Scheme has to be considered.
30. In view of the above position, the reasoning given by the learned Single Judge is not sustainable in the eyes of law. The Special Appeal is allowed and the impugned judgment passed by learned Single Judge of this Court is set aside. Consequently, the writ petition filed by the petitioner-respondent shall stand dismissed.
31. The respondent-petitioner may apply for consideration of her case under the new Scheme and the appellants shall consider her case strictly in accordance with Clause 13 of the said new Scheme within a period of three months from the date of receiving of application.
Order Date :- 29.2.2016 RKP