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RAJEEV KUMAR KHANNA versus CHIEF MANAGER (KARMIK)

High Court of Judicature at Allahabad

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Rajeev Kumar Khanna v. Chief Manager (Karmik) - WRIT - C No. 14249 of 2003 [2005] RD-AH 2019 (22 August 2005)

 

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

Judgement reserved on 29.7.2005

Judgement delivered on 22.8.2005

Civil Misc. Writ Petition No. 14249 of 2003

Rajeev Kumar Khanna

versus

Chief Manager (Karmik),

Union Bank of India  and others

Hon'ble Sunil Ambwani, J.

Heard Sri Raj Kumar Khanna for petitioner and Sri Piyush Bhargava for respondent Bank. The background facts in a nutshell are as follows;

1. The petitioner's father late Shri Munna Lal Khanna was serving as Daftary in Union Bank of India (in short the Bank), Station Road  Branch,  Mirzapur. He expired on 26.11.1996 while on duty. Smt. Sheela Khanna, the widow of the deceased employee  made a representation to the Bank on 3.12.1996,  nominating her son petitioner,  Rajeev Kumar Khanna for appointment under the scheme of appointment on compassionate grounds. In this representation, she clearly stated that she is unable to join the service of the Bank for the reasons of illness. The Deputy Manager of the Bank informed her vide letter dated 31.12.1997 that the request of Sri Rajeev Khanna for compassionate appointment has been declined by the competent authority. Smt. Sheela Khanna once again made a request to the General Manager (Personnel) of the Bank for appointment of her son on compassionate grounds. In this undated application she gave the details of the service benefits received by her husband and admitted that she has received a total amount of Rs. 2, 72, 614.34 towards gratuity, provident fund, DRF fund, Family Welfare Scheme, Group Insurance, Leave Encashment and is receiving Rs. 3200/- as pension from the Bank. She, however, stated that her daughter got married at Lucknow,  in which she had spent Rs. 3,20,000/-.  She had taken Rs. 20,000/- as loan after which the family condition of the family has deteriorated. She sent reminders on 22.3.2001 and 6.6.2001. The Bank again by with communication dated 11.1.2002 to the petitioner turned down the request. The Senior Manager informed the petitioner that the compassionate appointment is granted to the dependants of the deceased employee to enable the family to tide over sudden crisis.  Such an appointment  cannot be claimed after the crisis is over. The Bank regretted its inability to consider his request and  advised the petitioner  not to enter into any further correspondence on the subject in future. On 8.4.2002 the petitioner's mother Smt. Sheela Khanna received a letter from the Chief Manager (Karmik) of the Bank in response to her letter to Special Secretary, Ministry of Finance, Government of India dated 5.2.2002,  stating that the compassionate appointment is given only when  family is in a state of poverty and  has no source of income. Since the monthly income of the family is sufficient, the competent authority had rejected her application. He further stated in the reply,  that the compassionate appointment is offered only to tide over immediate financial crisis and once the crisis is over, the claim cannot be entertained.

2. Learned counsel for the petitioner submits that the entire  approach of the Bank is erroneous. The petitioner was pursuing his request for compassionate appointment since 1997. The request must be considered with reference to the amounts received by the heirs of the deceased employee. He submits that the amounts like gratuity, provident fund have no relevance in determining the question of compassionate appointment,  and in any case the liabilities in the present case were more than the amount received by the family. The family pension given to the widow is too meagre to support the family. He submits that the family is still reeling in financial crisis and that the Bank committed patent illegality in rejecting petitioner's application.

3. Sri Piyush Bhargava, learned counsel for respondent Bank has relied upon the Scheme of compassionate appointments/reliefs to dependants of the deceased employee/employees seeking premature retirement on medical grounds dated 22.7.2003 annexed as Annexure No. 2 to the counter affidavit of Sri Anil Kumar, Chief Manager of the respondent Bank. He submits that mere death of an employee in harness does not entitle  one of his family member to an appointment in the Bank. The respondent Bank has to examine the financial condition of the family of the deceased employee. He submits that clause-4 of the Circular No. 4341 dated 19.2.1997 had clarified that the object of granting compassionate appointment is to enable the family to tide over the sudden crisis. In such case the appointment is offered only when the Bank is satisfied  that the financial condition of the family is such that  but for the provision of employment, the family will not be able to meet the crisis.  In considering such appointment the competent authority will take into account the service benefits received by the family of the deceased employee. Such appointments are purely on humanitarian considerations and no appointment can be claimed as a matter of right. The Scheme has undergone modification vide Circular No. 4989 dated 22.7.2003. Under this modified  Scheme now the family of the deceased employee may either be given  compassionate appointment to an eligible and dependent family member or  a lump sum  financial relief. The method of awarding financial relief is provided in Para-II of Annexure No. 1 to the scheme. In this method the total amounts received by the dependants of the family and the pension is calculated,  and where it falls  short with 60% of the last drawn salary (net of tax) of deceased  then the difference of amount of 60% of the last drawn salary (net of tax) of the deceased employee is calculated towards the minimum lump sum financial relief to set of the loss of income. In order to have uniform and equitable yardstick the minimum and maximum amount under this method for officers, clerical and sub staff has been worked out.

4. Learned counsel for the Bank submits that in the present case the petitioner's family was not in a financial crisis at the time of death of the  employee,  and as such this is not a case where an appointment on compassionate ground could be given. The petitioner's family is receiving family pension of Rs.  3420/- from November, 1996, besides total allowances of Rs. 328/- per month and that in May, 2003 the family  pension paid was increased to Rs. 3598/-. The family received R 1,96,000/- by way of net terminal dues. On proper investment of this amount the petitioner's family would have received  monthly interest Rs. 1600/- per month. Taking these benefits together and the last drawn salary of the petitioner's father, the Bank came to conclusion that the family is not under such financial crisis which may give to the petitioner any right to claim compassionate appointment. He has relied upon various judgements of Supreme Court beginning from Umesh Kumar Nagpal vs. State of Haryana and others 1994 (68) FLR 1191 SC; to the latest judgements of Supreme Court in  General Manager (D &PB) vs. Kunti Tiwari and another, (2004) 7 SCC 271;  and Punjab National Bank and others vs. Ashwini Kumar Taneja (2004) 7 SCC 265.

5. The decisions of Apex Court  give sufficient  guidelines  in these matters.  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 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  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 was held that compassionate  employment cannot be  claimed as a matter of course. It is not 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 judgements 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 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 in capitation, 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 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 dependants 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 the rule prohibits an appointment  on compassionate ground when 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.

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.

In Punjab National Bank vs. Ashwini Kumar Tanaja (supra) the Supreme Court reiterated that compassionate appointment is not a matter of right. It is given by way of purely humanitarian consideration having regard to the fact that unless some source of livelihood is provided the family would not be able to make both ends meal. The Court has to be taken that such appointments are as in the nature of exception to the general provisions and do not unduly interfere with the right of those other persons who are eligible for appointment against the post which would have been for the provisions enabling appointment being made on compassionate grounds of the dependent of the deceased employee as it is in the nature of exception. It cannot substitute the provision and to nullify the main provision by taking the completely right conferred on others for seeking such employment. The retiral benefits have to be taken into consideration, while dealing with the prayer for compassionate compassionate.

6. In the present case the petitioner's father was serving in the Bank as Daftari. On the date of his death the petitioner was not eligible for appointment. His mother declined to accept compassionate appointment on the ground of her illness and nominated her son for such consideration. The representation was rejected on 31.12.1997. The family  thereafter kept quite for full five  years and then the mother  again started making representation for appointment of her son. She admitted that the family had received Rs. 2, 72, 614.34 from the Bank as service benefits and was receiving Rs. 3200/- as family pension. Taking into account the post held by petitioner's father, the family pension and the interest from service benefits were sufficient  to mitigate the financial crisis and had actually taken care of family needs. The family was not under any such   financial crisis to revive the request after five years. The fact ,that the family spent a considerable amount on the marriage of one of the daughter in the year 1999, could not be a ground to consider compassionate appointment, after five years of the death of the employee. The Bank was not required to wait for the  family to get into any financial crisis in future. or to keep a post vacant for such eventuality.

7. The Bank did not commit any illegality or violated the provisions of the scheme for compassionate appointment,  to interfere in the matter. The writ petition is dismissed.

Dt. 22.8.2005

RKP/


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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