Heard learned counsel for the petitioner and Sri Sanjai Singh, learned counsel for the respondents.
Petitioner's father who was an employee of respondent-bank died-in-harness on 26.02.2009 and left behind three sons and his wife who were dependent upon the father, two sons are married but all are unemployed.
The petitioner made an application for payment of ex gratia amount under the modified scheme for consideration of extending financial assistance as ex-gratia (lump sum) amount for employment on compassionate grounds in exceptional cases: to family of employees who expire while in harness.
The claim of petitioner's mother was considered by the bank as per the formula prescribed in the scheme and came to the conclusion that total monthly income of the family computed from all resources is more than 60% of the last drawn notional gross salary and thus is not eligible to ex-gratia (lump sum) amount.
The submission of learned counsel for the petitioner is that the family pension has wrongly been included in the terminal benefit granted by the bank and the formula as evolved by the bank is wholly arbitrary and he further submits that apart from ex-gratia payment the petitioner is also entitled for compassionate appointment.
In rebuttal, learned counsel for the respondent-bank submits that the conditions for grant of compassionate appointment are not fulfilled by the petitioner. As per the circular order, it is only in the following conditions compassionate appointment can be granted:-
"4.1. The cases decided under the Scheme Circulated vide HRDD Cir No. 235 dated 7.1.2005 after 29.10.2004, where death was occurred on or after 31.07.2004 where the Ex-Gratia (lumpsum amount) has been paid/sanctioned, may be reopened and reviewed under this modified scheme for offering Employment on Compassionate Grounds to 'next of kin' of the deceased employee, provided an application is received from the family for this purpose within six months of the date of this circular, along with an undertaking from the family that they shall refund the amount of Ex-Gratia paid by the Bank in one installment (without interest), provided employment is offered by the Bank, where:-
The employee has died while performing his official duty, as a result of violence, terrorism, robbery or dacoity;
The employee has died within 5 years of his first appointment or before he had reached the age of 30 years, whichever is later."
I have perused the record. The details of the amount received from the resources declared by the employee according to the bank is as follows:-
"The following investments were declared by the employee while in service of the bank:
5. It is observed that the monthly income of the family from all sources (Rs. 12908/-) is more than 60% of the last drawn monthly gross salary, net of notional taxes (Rs. 10572/-), and as such, the family of the deceased employee is not eligible to receive assistance under the scheme of ex-gratia (lump-sum) amount."
A Division Bench of this Court in Special Appeal No. 14 of 2007 (State Bank of India Vs. Ajai Kumar) decided on 21.11.2013, after considering the judgments of the Supreme Court in (i) General Manager (D&PB) and Others Vs. Kunti Tiwary and Another; (2004) 7 SCC 271 (ii)Punjab National Bank and Others Vs. Ashwini Kumar Taneja; (2007) 7 SCC 265 (iii) Mumtaz Yunus Mulani (Smt.) Vs. State of Maharashtra and Others; (2008) 11 SCC 384 and (iv) Union of India & Anr. Vs. Shashank Goswami & another 2012 STPL (Web) 320 SC, held that terminal benefits, which have been given to the family of the deceased, have to be duly taken into account while considering the case of the petitioner for compassionate appointment.
The bank has in the circumstances duly considered the financial position of the family of the deceased employee and it is beyond the scope of judicial review under Article 226 of the Constitution of India for the High Court to undertake the exercise to decide as to what would be the reasonable income which would be sufficient for a family for its survival and whether it had not been left in penury or without any means of livelihood.
In State Bank of India Vs. Somveer Singh (2007) 4 SCC 778, the Supreme Court held that financial condition of the deceased employee's family should be the important criterion for eligibility of compassionate appointment. The High Court cannot undertake any exercise to decide as to what would the reasonable income, which would be sufficient for the family, for its survival and whether his family is in penury or without any means of livelihood. The High Court can only advert to itself to review the decision making process.
It is settled principle of law that rules, regularization, scheme or policy as applicable on the date of passing of the order shall be applicable and not that was applicable on the date of filing of application. (Vide Commissioner Municipal Corporation, Shimla vs. Prem Lata Sood and others (2007) 11 SCC 40, Union of India and others vs. Indian Charge Chrome and Another (1999) 7 SCC 314, Kuldeep Singh vs. Govt. of NCT of Delhi (2006) 5 SCC 702).
In this context I may usefully refer to the decision of Supreme Court in Union of India vs. R. Padmanabhan 2003 (7) SCC 270, wherein this Court observed:
"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 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 time and then depose 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."
Reference may also be made to the decision of Supreme Court in Kuldeep Singh vs. Government of NCT of Delhi [2006 (5) SCC 702] which considered the question of grant of liquor vent licences. The Supreme Court held that where 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. The Apex 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 Supreme Court in State Bank of India and another Versus Raj Kumar (2010) 11 SCC 661 held that an appointment under the scheme can be made only if the scheme is in force and when a scheme is abolished, any pending application seeking appointment under the scheme will also cease to exist unless saved. The mere fact that in application was made when the scheme was in force, will not by itself create a right in favour of the applicant. Paragraph 6 is as follows:-
"6. 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."
Applying the law in the facts and circumstances of the case in hand, no prima facie case has been made out by the petitioner for interference under Article 226 of the Constitution of India.
The writ petition is, accordingly, dismissed.
Order Date :- 11.7.2014/kkm