JUDGMENT Vikram Nath, J.
1. This petition has been filed for quashing of the order dated 19.4.2000 and 8.5.2001 passed by the respondents and for further direction to the respondents to provide appointment to the petitioner under Dying-in-Harness Rule as Class IV employees.
2. I have heard Sri Ram Sheel Sharma, learned Counsel for the petitioner and Sri Himanshu Tiwari learned Counsel representing the respondents bank.
3. The facts giving rise to this petition are that the mother of the petitioner was appointed as Class IV employee on 12.6.1976. After completing about 8 years she was regularized on the post of IVth Class employee on 9.4.1984 and she died-in-harness on 19.1.1998. The petitioner after taking no objection from the other heirs of Smt. Gulab Devi applied for being giving appointment on compassionate basis. The said request of the petitioner for appointment on compassionate ground was declined vide order dated 19.4.2000 which is filed as Annexure-9 to the petition. The present petition was filed for quashing the order dated 19.4.2000 and for direction to give appointment on compassionate basis. This Court vide order dated 19.2.2001 while issuing notices to the respondents also granted liberty to the petitioner to make a fresh representation to the respondents No. 2 and directed him to pass speaking order on the said representation disclosing the ground on which the application of the petitioner had been rejected. The respondent No. 2 by order dated 8.5.2001 passed speaking order, which was subsequently challenged by means of amendment. Reasons given in the said order dated 8.5.2001 are as follows:
(i) The source of sustenance has been taken into consideration.
(ii) The deceased had left 8 children out of which 5 sons were employed, three remained two sons and one daughter.
(iii) The monthly source of income was estimated to be Rs. 3900/- which was thought sufficient for sustenance of three unemployed members.
(iv) Five elder brothers were also expected to take care of the remaining three unemployed children.
4. The said order has been challenged by the petitioner on the ground that materials facts have not been taken into consideration and that the petitioner was still entitled to be given compassionate appointment.
5. Counter affidavit and rejoinder affidavit have been exchanged. Sri Himanshu Tiwari learned Counsel representing the respondent Bank has also placed on record the circular issued by the Indian Bank Association and the scheme for giving appointment on compassionate grounds to the heirs of the officers and employees of the Bank who died-in-harness The circular dated 23.8.1996 has been issued by Indian Bank Association to all the Public Sector Banks Clause IV of the said circular gives the heading of financial condition of the family; the same is quoted here under:
"FINANCIAL CONDITION OF THE FAMILY The Hon'ble Supreme Court has observed that dependant's of an employee dying-in-harness can be considered for compassionate appointment provided the family is without any means of livelihood. Therefore, the rules may provide for taking into account the following to determine the financial condition of the family:-
(a) Family Pension;
(b) Gratuity amount received;
(c) Employee's/employer's contribution to provident fund;
(d) Any compensation paid by the bank or its welfare fund;
(e) Proceeds of LIC Policy and other investments of the deceased employee;
(f) Income for family from other sources;
(g) Employment of other family members;
(h) Size of the family and liabilities, if any, etc. Public Sector banks may amend the present policy of compassionate appointment of dependants of deceased employees and dependants of retired employees on medical grounds, keeping in view the judgment of the Hon'ble Supreme Court."
6. The above clause provides that the necessary rules will take into account the said factors to determine the financial condition. On query being made as to what scales of minimum earning of family of the deceased had been decided in the rules which will determine whether the dependant is within the limit or not, the Counsel for the respondent bank stated that there was no such scaling provided and the rules are silent on this aspect. This would means that it was left exclusively at the discretion of the concerned authority to determine whether the financial condition made the dependent eligible or not for giving appointment on compassionate grounds.
7. Learned Counsel for the petitioner has relied upon several decision of Allahabad High Court reported in 2002(2) LBESR 530 (Alld), Dhiraj Kumar Dixit v. The General Manager (Personal) UCO Bank, Calcutta and Ors.; 2002(1) LBESR 73 (All) (LB), Ram Piyarey v. State Bank of India and Ors.; 2000(2) LBESR 622 (All), Smt. Jagat Ram v. Executive Engineer, Construction Division and Ors.; 1999(2) LBESR 492 (All), Smt. Saroj Devi v. State of U.P.;(2003) 1 LBESR 935 (All.), Smt. Padma Pathak v. Managing Director, Punjab National Bank and Anr.; (2003) 2 UPLBEC 1172, Rahul Tandon v. Regional Manager, Allahabad Bank, Regional Office, Allahabad and Ors. The aforesaid decisions have been cited for the purpose that family pension, and payment of post death benefits cannot form the grounds for refusal to give appointment on compassionate basis.
8. The consideration of the financial condition has to be based upon a uniform policy to be adopted throughout the Institution. Learned Counsel for the petitioner has also relied upon the decision of Division Bench of this Court reported in (2004) 3 UPLBEC 2244 (All) (DB), Chief General Manager, Stale Bank of India, Lucknow and Ors. v. Durgesh Kumar Tiwari, wherein it has been held that the family pension having been substantially reduced the decision of the bank for non-granting compassionate appointment was set aside and direction of the Single Judge issued to grant appointment oh compassionate basis was upheld by the Division Bench.
9. Counsel for the respondent Bank has placed reliance upon the judgment of Supreme Court reported in JT 2004(6) SC 418 : (2004) 3 UPLBEC 2944 (SC), Punjab National Bank and Ors. v. Ashwini Kumar Taneja. As per the facts mentioned in the said case learned Single Judge of Rajasthan High Court had allowed the request for appointment on the compassionate ground over ruling the decision of the Bank refusing compassionate appointment as no financial hardship was caused to the family due to the fact that retirement benefits had been paid to the Family. The Division Bench of Rajasthan High Court upheld the decision of learned Single Judge. The Supreme Court held that the financial condition of the family cats be a valid ground for not granting appointment on compassionate basis. It set aside the judgment of Single Judge as well as the Division Bench and allowed the appeal of the Bank. However, it permitted that the case of the respondents to be considered sympathetically under any other scheme or policy in accordance with law.
10. Considering the facts and circumstances of the case and also the law laid down as stated above, the Bank has to frame a clear policy and provide all the necessary guide lines for consideration of concerned appropriate authority by fixing the amount under different heads for calculating the minimum to be fixed for refusing compassionate appointment on the ground of financial condition of family of deceased employee. It cannot be left at the sole discretion of the concerned authority to fix such an amount resulting into discrimination and arbitrariness in giving appointment on compassionate basis. There has to be a uniform policy.
11. In the circumstances, the order passed by the respondent Bank is set aside and the matter is sent back for consideration of the Bank for fixing the scales under different heads and thereafter circulate a uniform policy to be adopted throughout the institution. In case the scaling so fixed entitles the petitioner for consideration, his case may be considered and if he is excluded under the scales fixed, he may be intimated accordingly. Such decision should be taken at the earliest and in any case within a period of four months from the date of production of certified copy of this order.
12. Accordingly, the writ petition is allowed with the aforesaid directions.