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MAHESH PRASAD versus DISTRICT ASSISTANT REGISTRAR COOP. SOCIETIES U.P. & OTHERS

High Court of Judicature at Allahabad

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Mahesh Prasad v. District Assistant Registrar Coop. Societies U.P. & Others - WRIT - A No. 7079 of 2003 [2003] RD-AH 461 (25 November 2003)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Judgment reserved on 10.11.2003.

                                                               Judgment delivered on 25.11.2003

Civil Misc. Writ Petition No. 7079 of 2003.

Anil Kumar Yadav                       ...                            Petitioner

                                              Versus

Union Bank of India and others    ...                           Respondents.

Hon. Sunil Ambwani, J.

Heard counsel for petitioner and Sri Vivek Ratan, counsel for Union Bank of India.  

Brief facts giving rise to this writ petition are that petitioner's father late Bhagwan Singh Yadav was employed as Deputy Branch Manager in the Bank.   He died in harness on 6.12.2001 leaving behind his wife Smt. Urmila Yadav, two sons including petitioner and one unmarried daughter Km. Rupali Yadav.  Petitioner applied for compassionate appointment on 2.1.2002 under the scheme of compassionate appointment of the Bank.  Petitioner is B. Com. And his application is supported by 'no objection certificate' from his mother. The application was rejected by the Chief Manager (Personnel) of the Bank on 27.12.2002 on the ground that after examination of his application it was found  that the family is not in any such condition  which could be termed as 'financial distress' and thus the competent authority has rejected the application for compassionate appointment.

In the counter affidavit of Sri N. Balakrishan, Assistant Manager (Personnel), Union Bank of India, Regional Office, Kanpur, it is stated that the scheme  for compassionate appointment  was floated by Staff Circular No. 4341 dated 19.2.1997 after it was approved by the Board of Directors of the Bank in pursuance of the observations made by Supreme Court in Umesh Kumar Nagpal Vs. State Bank of Haryana and others.  The Bank is also required to consider the directive of the Central Government and Ministry of Finance Indian Banks' Association. Mere death of employee in harness does not entitle one of his family member to an appointment unless the family is in crisis and  this has to be determined while taking into account the financial condition of the family including

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the family pension, gratuity, employees/employees contribution to the provident fund, any compensation paid by the Bank or its Welfare Fund, proceeds of LIC Policy and other investments income from other sources, employment of other family members, and size of family and liabilities.  It is stated in paragraph 12 that in the present case,  petitioner's family is receiving family pension of Rs. 5788/- and besides the family has received Rs.5,82,237/- by way of net terminal dues and if the amount is properly invested, the family will receive a monthly interest of Rs. 3639/-.  The family as such has an income of about 9,427/- per month and looking to this side and responsibility, it is not in such financial distress or hardship that an employment be given to one of its family members.  

Counsel for petitioner has relied upon the judgment of this Court in Dhiraj Kumar Dixit Vs. General Manager (Personal), UCO Bank, Calcutta (2003) 1 U.P.L.B.E.C. 20.  In this case this Court considered the scheme, and found that the scheme virtually defeats the object and purpose of compassionate appointment and while declaring clauses 7 and 8 of the scheme of recruitment of dependent of deceased employee on compassionate ground, as arbitrary and irrational, quashed the order directing respondent to consider her representation afresh.  

Petitioner has relied upon the judgment of this Court in State Bank of India. Vs. Ra, Piyare, 2001(2) ESC 876 and Smt. Sharda Devi Vs. District Magistrate/Collector, Ghazipur and others, 2003(2) ESC 1026.  He has also relied  upon the Division Bench decisions of this Court in Om Prakash Ram and another Vs. Central Administrative Tribunal, Allahabad and others in writ petition No. 23351 of 2003 decided on 23.5.2003, Jadwati Devi and others Vs. State Bank of India in Special Appeal No. 447 of 1999 decided on 27.7.1999 and Anand Kumar Vs. Union of India and others reported in 2002 ESC Alld 27 as well as  decisions of learned Single Judge in Anurag Yadav Vs. Chief General Manager, State Bank of India, Lucknow and others in writ petition No. 5659 of 2000 decided on 1.4.2002, and Kishore Singh Vs. S.B.I Kanpur 2001(1), Bank CLR (Alld)  In these decisions the Division Benches have denied Compassionate appointment where the financial condition of the dependents, did not justify any such appointments.

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There is a series  of decisions of Apex Court which gives ample guidelines  in these matter.  An extract from the  decision given in Om Prakash Ram and another Vs. Central Administrative Tribunal, Allahabad and others is quoted as below:

"In  Sushma  Gosain Vs.  Union of India  & ors., AIR  1989  SC 1976, the Apex Court held  as under:-

"It  can be stated unequivocally that  in all claims for appointment on compassionate ground, there should not be any 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 appointment should, therefore, be provided immediately to redeem the family in distress.  It is improper to keep such case pending for years. If there is  no suitable post for appointment, supernumerary  post should be created to accommodate the applicant."

The aforesaid judgment was approved and the principle laid down therein was reiterated by the Hon'ble Supreme Court in Smt.  Phoolwati Vs. Union of India & ors., AIR 1991 SC 469.

In  Umesh  Kumar  Nagpal Vs. State of  Haryana &  ors.,  (1994) 4 SCC 138,  the  Hon'ble  Apex Court has considered the nature of the right  which a dependant can claim while seeking employment  on  compassionate ground.  The  Court  has observed as under:-  

"It appears that there has been a good deal of obfuscation on the issue. As a rule, appointment in the public services should be made strictly on the basis of open invitation of   applications and merit. No other mode of appointment nor any other consideration is  permissible. Neither the Governments nor the  public authorities  are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the  post.  However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interest of justice and to meet certain contingencies. One such exception  is in favour of the dependants of  an  employee  dying  in  harness  and  leaving  his family in penury and without any  means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is  provided, the family

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would not be able to make  both ends meet, a provision is made in the rules to provide gainful employment  to  one of the dependants  of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is, thus, to enable the family to tide over the sudden crisis. The object  is not to  give  a  member  of such family a post much less a post for post held by the deceased.  What is further, mere death of an employee in harness  does  not entitle his family  to such   source   of    livelihood.     The  Government   or  the   public   authority  concerned  has  to examine the  financial condition  of the family of the  deceased and  it  is only if it is satisfied  that but  for the provision of employment, the family  will  not  be able  to  meet  the crisis that a job is to be offered to the eligible member of the family.......

.......The  favourable treatment given to such  dependant of the deceased  employee in  such posts has a rational nexus  with the  object  sought to be achieved,  viz. relief  against  destitution.   No  other posts  are  expected  or required  to  be given  by the public authorities for  the purpose.   it must be remembered in  this connection  that as against the destitute family   of  the   deceased,  there   are 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 expectations, and the  change in the status and affairs  of the  family  engendered by the  erstwhile employment    which       are    suddenly upturned....   Unmindful  of  this  legal position,  some  Governments  and  public authorities    have      been    offering compassionate  employment sometimes as  a matter  of  course  irrespective  of  the financial  condition of the family of the  deceased.......   The  decision does  not justify  compassionate employment  either as  a  matter  of  course....   The  only ground  which  can justify  compassionate employment is the penurious condition of the deceased's     family...... The consideration for such employment is not  a  vested right....  The object being  to enable  

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the  family  to   get  over   the financial crisis.  (Emphasis added).    

The same view  has been  reiterated  in Jagdish Prasad  Vs.  State of Bihar, (1996) 1 SCC 301; State of Bihar Vs.  Samsuz Zoha, AIR  1996 SC 1961;  Himachal Road Transport Corporation Vs. Dinesh Kumar,  (1996)  4 SCC 560;  and  Hindustan Aeronautics  Ltd.   Vs.  A.  Radhika  Thirumalai, (1996) 6 SCC 394.  It has categorically been held that compassionate  employment cannot be  claimed as a matter of course not being a vested right.  

In Haryana State Electricity Board & Anr. Vs.  Hakim Singh, JT 1997 (8) SC 332, the Hon'ble Apex Court placed reliance upon the judgments referred to above and observed that the object of providing for compassionate employment is only to relieve the family from financial   hardship, therefore, an 'ameliorating relief should not be taken as   opening  an alternative mode of recruitment to public employment.  

Similarly, in Haryana State Electricity Board Vs. Naresh Tanwar & Anr., (1996) 8 SCC 23, the Hon'ble Apex Court reiterated and  followed the law laid down in Umesh Nagpal's case (supra) and directed  the applicants involved therein  to apply for  employment on compassionate ground "by giving full details of the family circumstances and the economic conditions."        

In Director of Education (Secondary)  & Anr. Vs. Pushpendra Kumar & ors., (1998) 5 SCC 192, the Apex Court has observed as under:-      

"The object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee  to tide over the sudden crisis  resulting   due   to death of the bread-earner which has left the family in  penury and without any means of livelihood. Out of pure humanitarian consideration and  having regard to the fact   that unless some source of livelihood is provided, the family would not be able to make both the ends meet, a provision  is  made  for  giving  gainful appointment  to one of the dependants of the deceased who may be eligible for such appointment. Such a provision makes a departure from the general provisions providing for appointment on the post by following a particular procedure. Since such a  provision enables appointment being made  without following  the  said procedure,  it  is  in the

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nature of an exception to the general provisions. An exception cannot subsume the   main provision to which it is an exception and thereby nullify the main provision. Care has, therefore, to be taken that a provision for  grant of compassionate employment, which is in the nature of an exception  to the general provision, does not  unduly  interfere with the right of other persons who are eligible  for appointment to seek employment  against  the  post which would have been available to  them, but for the provision enabling appointment being made on compassionate grounds  for the dependant of a deceased employee." (Emphasis added).        

In Chairman, Bihar Rajya Vidyut Board Vs. Chhathu Ram,  (1999)  5 SCC 673, the  Hon'ble Supreme Court  held that in absence of the statutory provisions, an adopted son cannot claim appointment on compassionate ground. Similarly, in General Secretary, American Express Bank Union Vs.  American Express Bank Ltd., (1999) SCC (L&S) 1235, the Hon'ble Supreme Court held that mere adoption of recruitment policy in pursuance of a Settlement between the union and the employer for compassionate employment of the specified categories of relations of employees on their retirement, death or incapitation, cannot be enforced unless adopted by the employer by bringing the Standing Order/ Statutory Rule. Similarly, in West Bengal State Electricity Board Vs.  Sameer  Kumar Sarkar, ( 1999) 7 SCC 672, the Hon'ble Apex Court held that embargo on  compassionate employment in case of death of employee within two years prior to reaching  the age of superannuation, was not invalid.          

In Balbir Kaur Vs. Steel Authority of India & ors., (2000) 6 SCC 493, the Hon'ble Supreme  Court  held that appointment  on  compassionate ground is not a vested right but it should not  be denied in deserving cases for  the  reason that  it would be tantamount to denial  of  economical and social justice as enshrined in the Constitution and law must be, in its adaptability  and flexibility, applied  depending upon a situation for the benefit of the society.    

In Sanjay Kumar Vs. State of Bihar, JT 2000 (10) SC 156, the Hon'ble Supreme Court again reiterated that the purpose of the rules  providing for compassionate employment is only to  enable the  family of

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the deceased  employee  to  tide over sudden crisis resulting due to death of  the bread-earner  who  had  left  the  family in puniary and  without any means of livelihood, but  such an appointment  cannot  be  held as  if  a  reservation  for  the dependents of the  deceased  Government servant who died in harness. In Regional Manager, A.P.S.R.T., Nellore Vs. C.M.   Pawana Kumari, 2001 AIR SCW 4779, the Apex Court held that direction cannot be issued to appoint a person on compassionate ground dehores the scheme framed by the employer nor the court has a power to modify the scheme or rules framed in this regard. Similar view has been reiterated in the Divisional Manager, A.P.S.R.T.C. Vs. K. Radha Krishna, 2001 AIR SCW 5190 while deciding a case of appointment on compassionate ground under Re-employment Children Quota provided  under the Circular issued by  the Corporation.

In Surya Kant Kadam Vs. State of Karnataka  & ors., AIR 2001 SC 3145, the Apex Court held that in absence of any statutory rules, appointment on compassionate ground can be governed by the   executive  instructions and in spite of the fact that the said  instructions may not have a statutory force, the same are bound to be observed by the employer.

In State of Haryana & ors. Vs. Vipin Kumar, AIR 2002 SC 2867, the Apex Court held that compassionate employment is not given to offer a status on a family and no person can claim to have the same post and   if rules/ executive instructions provide that appointment shall be made on one stage below, it can be made not only next below post but to any other lower post as the rules provide only that the appointment may be offered at least one step below the post the deceased Government was holding and there can be no bar in offering still a lower post for the reason that the purpose of appointment on compassionate ground is to redeem the family from financial constrains and not to confer any other benefit or status.

In Steel Authority of India Ltd. Vs. Awadesh Singh, (2001) 10 SCC 621, the Hon'ble Supreme Court held that if rule prohibits an appointment  on compassionate ground if any other member of the family is already in service, the said rule is valid and no direction can be issued against such a scheme.

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While reiterating the purpose of making appointment on compassionate ground, the Hon'ble Supreme Court, in Haryana State Electricity Board Vs.  Krishna Devi, 2002 (2) LLJ 773, held that the main object behind giving such employment is to provide immediate financial help to the family of the deceased employee. Such appointment cannot be   made in absence of Rules or Instructions. Application for such employment must be made within the period prescribed by the Rules/Instructions. Application made at a belated stage cannot be   entertained for the reason that by lapse of time, the purpose of making such appointment stands evaporated.

The object and purpose of compassionate appointment  as stated in the aforesaid Apex Court's decision is to tide over immediate financial crises faced by the dependent of the deceased.  The appointment is not given as a matter of right  of employment.  It is an  exception to the general rule is to provide immediate relief to the deceased family and to take care of  financial hardship suffered by the family. In the present case the petitioners have not denied that they will be beneficiaries of the amount, detailed in the counter affidavit.  With an income of Rs.9,427/- per month, and with no further liabilities of marriage of her daughters, the widow and sons cannot be said to have been left by the deceased in penuary.  They cannot be said to be suffering from such financial hardship or distress to be offered appointment in bank as of right.  With a regular steady and recurring  income, the family cannot claim a right to exception in appointment. The ratio in decisions of Supreme Court and Division Benches of this Court saves the scheme from the vice of arbitrariness or invalidity on the touch stone of Article 14,16,21 or 39 of the Constitution of India.

                   In Union of India Vs. Joginder Singh, JT 2002(7) SC 425, it was held by Supreme Court that courts cannot direct appointment on compassionate ground dehorse the provisions of scheme. If in a given case, the determination of the Government concerned declines as a matter of policy, not to deviate on the mandate of the provisions underlined the scheme and refuses to relax stipulation in respect of the ceiling fixed, the Court cannot compel to exercise jurisdiction in a particular case to relax essential condition.

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Although in Dhiraj Kumar, the judgement of Umesh Kumar Nagpal and Balvir Kaur has been referred to but the said judgment does not take into account the long chain of established principles of law of compassionate appointments laid down by judgments of Supreme Court, as well as the four Division Bench decisions which were rendered earlier to the judgment in Dhiraj Kumar Dixit's case .

Following the decision of Apex Court and the Division Bench's of the court, as above, I do not find any ground to interfere in the matter. The writ petition  is, accordingly, dismissed.

Dt.25.11.2003.

BM/-


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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