CANARA BANK & ANR. Vs. M. MAHESH KUMAR

CONSTITUTION OF INDIA 1949

Section 16 - Equality of opportunity in matters of public employment

Tags Appointment Compassionate Appointment

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 260 of 2008, Judgment Date: May 15, 2015

Common question of law falling for consideration in these  civil
appeals is whether the dependant family members of the deceased employee  of
the appellant-Canara Bank were entitled to  seek  compassionate  appointment
on the basis of  ‘Dying in Harness Scheme’ which was  passed  Vide  Circular
No.154/1993 w.e.f. 8.05.1993.

(i) Compassionate employment cannot be made  in  the  absence  of  rules  or
regulations issued by the Government or a public authority. The  request  is
to be considered strictly in accordance with the governing  scheme,  and  no
discretion as  such  is  left  with  any  authority  to  make  compassionate
appointment dehors the scheme.
(ii) An application for compassionate employment must be  preferred  without
undue delay and has to be considered within a reasonable period of time.
(iii) An appointment on compassionate ground is to meet  the  sudden  crisis
occurring in the family on account of the death or medical  invalidation  of
the  breadwinner  while  in  service.  Therefore,  compassionate  employment
cannot be granted as a matter of course by way of largesse  irrespective  of
the financial condition of the deceased/incapacitated employee’s  family  at
the time of his death or incapacity, as the case may be.
(iv) Compassionate employment is permissible only to one of  the  dependants
of  the  deceased/incapacitated  employee  viz.  parents,  spouse,  son   or
daughter and not to all relatives, and such appointments should be  only  to
the lowest category that is Class III and IV posts.”

 In the result, all the appeals preferred by  the  appellant-bank
are dismissed and the appellant bank is directed to  consider  the  case  of
the respondents for compassionate appointment as per the  Scheme  which  was
in vogue at the time of death of the concerned employee.

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.260/2008

CANARA BANK & ANR. ..Appellants
Versus
M. MAHESH KUMAR ..Respondent

WITH

CIVIL APPEAL NO.266/2008

CHAIRMAN AND MANAGING DIRECTOR

CANARA BANK & ORS. ..Appellants

Versus

SANTHA & ANR. ..Respondents

AND

CIVIL APPEAL NO.267/2008

CHAIRMAN AND MANAGING DIRECTOR
CANARA BANK & ORS. ..Appellants
Versus
A.K. SHEEBA & ANR. ..Respondents
J U D G M E N T

R. BANUMATHI, J.

Common question of law falling for consideration in these civil
appeals is whether the dependant family members of the deceased employee of
the appellant-Canara Bank were entitled to seek compassionate appointment
on the basis of ‘Dying in Harness Scheme’ which was passed Vide Circular
No.154/1993 w.e.f. 8.05.1993. The claim is resisted by the Canara Bank on
the ground that the financial condition of the family members of the
deceased employees is good and that the Scheme dated 8.05.1993 has been
replaced with scheme dated 14.02.2005 (H. O. Circular No.35/2005) scrapping
the provision of compassionate appointment and in lieu thereof introduced
the new scheme of ex-gratia payment.
2. In Civil Appeal No.260/2008, the Division Bench of the High
Court of Kerala at Ernakulam vide its Order dated 24.08.2006 in Writ Appeal
No. 1313/2003 (B) titled as Canara Bank & Anr. vs. M. Mahesh Kumar directed
the bank to reconsider the claim of the claimant- M. Mahesh Kumar within
two months from the date of order. Further, due to the pendency of SLP
against the decision dated 24.08.2006 in Writ Appeal No.1313/2003(B), the
Division Bench of the High Court of Kerala also disposed off the Writ
Appeal Nos.2333/2006 and 2335/2006 vide common order dated 11.12.2006 and
directed the claimants to approach this Court. Assailing the aforesaid
three decisions of the Division Bench of the Kerala High Court, the
appellant-bank has filed the instant appeals.
3. For convenience, Civil Appeal No.260/2008 is taken as a lead
case. Brief facts which led to the filing of the appeal are as follows:-
Respondent applied to the appellant-bank on 30.11.1998 claiming to be
considered for compassionate appointment on account of death of his father,
a clerk in the appellant-bank who while on duty died on 10.10.1998.
Respondent had applied for the compassionate appointment on account of
‘Dying in Harness Scheme’ with effect from 8.05.1993 then in vogue in the
appellant-bank. The bank vide its communication dated 30.06.1999 rejected
the claim of the respondent on the ground that the respondent’s family
financial position does not show any indigent circumstances warranting to
provide employment on compassionate ground. The respondent gave his
representation to the General Manager of the appellant-bank and several
other representations for reconsideration of his claim; but nothing
fruitful happened in consideration of respondent’s claim for compassionate
appointment. Thereafter, respondent filed O.P. No.21630/2002 (Y) before
the High Court of Kerala, Ernakulam seeking to quash the Ext.P4 and
direction to the appellant-bank to appoint him as per ‘Dying in Harness
Scheme’ then in force in the appellant-bank. The learned Single Judge of
the High Court vide judgment dated 30.05.2003 allowed the Original Petition
of the respondent herein and quashed Ext.P4 and directed the appellant-bank
to reconsider the claim of the respondent for appointment in accordance
with law within two months from the date of receipt of copy of judgment.
Appellant-bank assailed the decision of the learned Single Judge in Writ
Appeal No.1313/2003 (B) and the Division Bench upholding the order of the
Single Judge dismissed the writ appeal. The appellant-bank has filed this
appeal assailing the correctness of the above order.
4. Learned counsel for the appellant-bank contended that
consideration for appointment on compassionate ground is contrary to
Articles 14 and 16 of the Constitution of India and is only in the nature
of concession and, therefore, it does not create a vested right in favour
of the claimant/respondent. It was submitted that ‘Dying in Harness Scheme’
is a non-statutory scheme and is in the form of a concession and it does
not create a vested right in favour of the claimant/respondent to be
enforced through a writ of mandamus. It was further submitted that the
compassionate appointment is justified when it is granted to provide
immediate succour to the deceased-employee and cannot be granted on the
passage of time and in all these cases, the concerned employee died about
two decades ago and, therefore, the High Court was not justified in
directing the appellant-bank to reconsider the claim of the respondent for
compassionate appointment. In support of his contention, learned counsel
for the appellant relied upon number of judgments: Umesh Kumar Nagpal vs.
State of Haryana And Ors., (1994) 4 SCC 138; Steel Authority of India Ltd.
vs. Madhusudan Das & Ors., (2008) 15 SCC 560; Union of India & Anr. vs. B.
Kishore, (2011) 4 SCALE 298; State of Haryana vs. Naresh Kumar Bali,
(1994) 4 SCC 448; State Bank of India & Ors. vs. Jaspal Kaur, (2007) 9 SCC
571 and State Bank of India & Anr. v. Raj Kumar, (2010) 11 SCC 661.
5. Per contra, learned counsel for the respondent contends that
the order was passed by the appellant-bank without considering the facts
that is size of the respondent’s family/employment status of his family
members and sources of their income, liabilities and expenses and the
decision of the bank rejecting the case of the respondent for compassionate
appointment is arbitrary. Placing reliance upon Jaspal Kaur’s case
(supra) and other decisions, it was submitted that the case of the
respondent ought to have been considered in the light of the Scheme ‘Dying
in Harness Scheme’ which was then in vogue. The respondent averred that
the payment of terminal benefits cannot be taken as a ground for rejecting
employment under the ‘Dying in Harness Scheme’.
6. We have considered the rival contentions of both the parties
and perused the impugned judgments and the material on record.
7. Law with regard to employment on compassionate ground for
dependant of a deceased employee is well settled. In Sushma Gosain & Ors.
vs. Union of India & Ors., (1989) 4 SCC 468, this Court held as
thus:
“9. We consider that it must be stated unequivocally that in all claims for
appointment on compassionate grounds, 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 settled law which has been reiterated in various cases has been
succinctly elucidated in MGB Gramin Bank vs. Chakrawarti Singh, (2014) 13
SCC 583, wherein it was observed that compassionate appointment cannot be
granted as of right and the application to be decided as expeditiously as
possible and held as under:-
“6. Every appointment to public office must be made by strictly adhering to
the mandatory requirements of Articles 14 and 16 of the Constitution. An
exception by providing employment on compassionate grounds has been carved
out in order to remove the financial constraints on the bereaved family,
which has lost its breadearner. Mere death of a government employee in
harness does not entitle the family to claim compassionate employment. The
competent authority has to examine the financial condition of the family of
the deceased employee and it is only if it is satisfied that without
providing 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. More so, the
person claiming such appointment must possess required eligibility for the
post. The consistent view that has been taken by the Court is that
compassionate employment cannot be claimed as a matter of right, as it is
not a vested right. The Court should not stretch the provision by liberal
interpretation beyond permissible limits on humanitarian grounds. Such
appointment should, therefore, be provided immediately to redeem the family
in distress. It is improper to keep such a case pending for years.”
(Underlining added)

8. The above consistent view has been reiterated in various
judgments by this Court in Umesh Kumar Nagpal vs. State of Haryana & Ors.
(1994) 4 SCC 138, State of Manipur vs. Md. Rajaodin, (2003) 7 SCC 511,
Steel Authority of India Ltd. vs. Madhusudan Das & Ors., (2008) 15 SCC 560
and Sanjay Kumar vs. State of Bihar & Ors., (2000) 7 SCC 192.
9. Before adverting to the arguments of the learned counsel for
the parties, it is necessary to examine the scope of the Scheme dated
8.05.1993 vide Circular No.154/1993 for “compassionate appointment”. The
object of the Scheme is to help dependants of employees of Canara Bank who
die or become totally and permanently disabled while in harness and to
overcome the immediate financial difficulties on account of sudden stoppage
of the main source of income. The employment under the scheme will be
considered only if there are indigent circumstances necessitating
employment to one of the dependants and the deceased employee’s service
record is unblemished. Mere eligibility will not vest a right for claiming
employment. As per para 3.1, application for employment should be sought
within 2½ years from the date of death of the employees. In para 3.2, it
is stated that in case of the dependant of the deceased employee to be
offered appointment is a minor, the bank may keep the offer of appointment
open till the minor attains the age of majority provided a request is made
to the bank by the family of the deceased employee and the same may be
considered subject to rules prevailing at the time of consideration.
10. During the pendency of the matter before the Division Bench,
Indian Banks Association (for short ‘IBA’) formulated a scheme based on the
guidelines issued by the Government of India. As per the said Scheme, the
banks have scrapped the scheme of compassionate appointment and introduced
the new scheme of ex-gratia payment in lieu of compassionate appointment by
H.O. Circular No.35/2005 dated 14.02.2005. According to appellant-Bank,
as on date of consideration of the application for compassionate
appointment, there was no policy to provide compassionate appointment under
‘Dying in Harness Scheme’. It is therefore the contention of the bank
that the new scheme of 2005 applies to all pending applications for
appointment on compassionate ground, respondent’s case could not be
considered and as per the new Scheme, they are only entitled to ex-gratia
payment in lieu of compassionate appointment.
11. The main question falling for consideration is whether the
Scheme passed in 2005 providing for ex-gratia payment or the Scheme then in
vogue in 1993 providing for compassionate appointment is applicable to the
respondent. Appellant-bank has placed reliance upon the judgment of this
Court in Jaspal Kaur’s case (supra) to contend that the respondent’s case
cannot be considered on the basis of ‘Dying in Harness Scheme 1993’ when
the new Scheme of 2005 providing for ex-gratia payment had been put in
place. In Jaspal Kaur’s case (supra), Sukhbir Inder Singh employee of
State Bank of India, Record Assistant (Cash & Accounts) passed away on
1.08.1999. Widow of the employee applied for compassionate appointment in
State Bank of India on 5.02.2000. On 7.01.2002, the competent authority of
the bank rejected the application of Jaspal Kaur in view of the Scheme vis-
a-vis the financial position of the family. Against that decision of the
competent authority, the respondent filed writ petition before the Punjab
and Haryana High Court which has directed to consider the case of Jaspal
Kaur by applying the Scheme formulated on 4.08.2005 when her application
was made in the year 2000. In that factual matrix, this Court has directed
that dispute arising in the year 2000 cannot be decided on the basis of a
Scheme that was put in place much after the dispute. By perusal of the
judgment in Jaspal Kaur’s case, it is apparent that the judgment
specifically states that claim of compassionate appointment under a scheme
of a particular year cannot be decided in the light of the subsequent
scheme that came into force much after the claim.
12. The same principle was reiterated by this Court in the case of
Bhawani Prasad Sonkar vs. Union of India & Ors., (2011) 4 SCC
209, wherein it was held as under :-
“15. Now, it is well settled that compassionate employment is given solely
on humanitarian grounds with the sole object to provide immediate relief to
the employee’s family to tide over the sudden financial crisis and cannot
be claimed as a matter of right. Appointment based solely on descent is
inimical to our constitutional scheme, and ordinarily public employment
must be strictly on the basis of open invitation of applications and
comparative merit, in consonance with Articles 14 and 16 of the
Constitution of India. No other mode of appointment is permissible.
Nevertheless, the concept of compassionate appointment has been recognised
as an exception to the general rule, carved out in the interest of justice,
in certain exigencies, by way of a policy of an employer, which partakes
the character of the service rules. That being so, it needs little emphasis
that the scheme or the policy, as the case may be, is binding both on the
employer and the employee. Being an exception, the scheme has to be
strictly construed and confined only to the purpose it seeks to achieve.
……
17. In Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138, while
emphasising that a compassionate appointment cannot be claimed as a matter
of course or in posts above Classes III and IV, this Court had observed
that: (SCC p. 140, para 2)
“2. …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 posts
in Classes III and IV are the lowest posts in non-manual and manual
categories and hence they alone can be offered on compassionate grounds,
the object being to relieve the family, of the financial destitution and to
help it get over the emergency. The provision of employment in such lowest
posts by making an exception to the rule is justifiable and valid since it
is not discriminatory. 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 [pic]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.”
……..
20. Thus, while considering a claim for employment on compassionate ground,
the following factors have to be borne in mind:

(i) Compassionate employment cannot be made in the absence of rules or
regulations issued by the Government or a public authority. The request is
to be considered strictly in accordance with the governing scheme, and no
discretion as such is left with any authority to make compassionate
appointment dehors the scheme.
(ii) An application for compassionate employment must be preferred without
undue delay and has to be considered within a reasonable period of time.
(iii) An appointment on compassionate ground is to meet the sudden crisis
occurring in the family on account of the death or medical invalidation of
the breadwinner while in service. Therefore, compassionate employment
cannot be granted as a matter of course by way of largesse irrespective of
the financial condition of the deceased/incapacitated employee’s family at
the time of his death or incapacity, as the case may be.
(iv) Compassionate employment is permissible only to one of the dependants
of the deceased/incapacitated employee viz. parents, spouse, son or
daughter and not to all relatives, and such appointments should be only to
the lowest category that is Class III and IV posts.”
(Underlining added)

13. Applying these principles to the case in hand, as discussed
earlier, respondent’s father died on 10.10.1998 while he was serving as a
clerk in the appellant-bank and the respondent applied timely for
compassionate appointment as per the scheme ‘Dying in Harness Scheme’ dated
8.05.1993 which was in force at that time. The appellant-bank rejected the
respondent’s claim on 30.06.1999 recording that there are no indigent
circumstances for providing employment to the respondent. Again on
7.11.2001, the appellant-bank sought for particulars in connection with the
issue of respondent’s employment. In the light of the principles laid down
in the above decisions, the cause of action to be considered for
compassionate appointment arose when the Circular No.154/1993
dated 8.05.1993 was in force. Thus, as per the judgment referred in Jaspal
Kaur’s case, the claim cannot be decided as per 2005 Scheme providing for
ex-gratia payment. The Circular dated 14.2.2005 being an administrative or
executive order cannot have retrospective effect so as to take away the
right accrued to the respondent as per circular of 1993.
14. It is also pertinent to note that 2005 Scheme providing only
for ex-gratia payment in lieu of compassionate appointment stands
superseded by the Scheme of 2014 which has revived the scheme providing for
compassionate appointment. As on date, now the scheme in force is to
provide compassionate appointment. Under these circumstances, the appellant-
bank is not justified in contending that the application for compassionate
appointment of the respondent cannot be considered in view of passage of
time.
15. Insofar as the contention of the appellant-bank that since the
respondent’s family is getting family pension and also obtained the
terminal benefits, in our view, is of no consequence in considering the
application for compassionate appointment. Clause 3.2 of 1993 Scheme says
that in case the dependant of deceased employee to be offered appointment
is a minor, the bank may keep the offer of appointment open till the minor
attains the age of majority. This would indicate that granting of terminal
benefits is of no consequence because even if terminal benefit is given, if
the applicant is a minor, the bank would keep the appointment open till the
minor attains the majority.
16. In Balbir Kaur & Anr. vs. Steel Authority of India Ltd. & Ors.,
(2000) 6 SCC 493, while dealing with the application made by the widow for
employment on compassionate ground applicable to the Steel Authority of
India, contention raised was that since she is entitled to get the benefit
under Family Benefit Scheme assuring monthly payment to the family of the
deceased employee, the request for compassionate appointment cannot be
acceded to. Rejecting that contention in paragraph (13), this Court held
as under:-

“13. ….But in our view this Family Benefit Scheme cannot in any way be
equated with the benefit of compassionate appointments. The sudden jerk in
the family by reason of the death of the breadearner can only be absorbed
by some lump-sum amount being made available to the family — this is rather
unfortunate but this is a reality. The feeling of security drops to zero on
the death of the breadearner and insecurity thereafter reigns and it is at
that juncture if some lump-sum amount is made available with a
compassionate appointment, the grief-stricken family may find some solace
to the mental agony and manage its affairs in the normal course of events.
It is not that monetary benefit would be the replacement of the
breadearner, but that would undoubtedly bring some solace to the
situation.”

Referring to Steel Authority of India Ltd.’s case, High Court has rightly
held that the grant of family pension or payment of terminal benefits
cannot be treated as a substitute for providing employment assistance. The
High Court also observed that it is not the case of the bank that the
respondents’ family is having any other income to negate their claim for
appointment on compassionate ground.
17. Considering the scope of the Scheme ‘Dying in Harness Scheme
1993’ then in force and the facts and circumstances of the case, the High
Court rightly directed the appellant-bank to reconsider the claim of the
respondent for compassionate appointment in accordance with law and as per
the Scheme (1993) then in existence. We do not find any reason warranting
interference.
18. So far as the cases in Civil Appeal No.266/2008 and Civil
Appeal No.267/2008 are concerned, they are similar and those respondents
are similarly placed and the appeals preferred by the bank are liable to be
dismissed. The appellant-bank is directed to consider the case of the
respondents in Civil Appeal Nos. 266/2008 and 267/2008.
19. In the result, all the appeals preferred by the appellant-bank
are dismissed and the appellant bank is directed to consider the case of
the respondents for compassionate appointment as per the Scheme which was
in vogue at the time of death of the concerned employee. In the facts and
circumstances of the case, we make no order as to costs.

………………………J.
(T.S. Thakur)

………………………J.
(R. Banumathi)
New Delhi;
May 15, 2015

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