Nizamuddin vs State of U.P. and Others

Sudhir Agarwal, J.—Heard learned Counsel for the Petitioner, Shri Vivek Ratan, learned Counsel for the Respondent Nos. 2 and 3 and learned Standing Counsel for the Respondent No. 1.

By means of the present writ petition, the Petitioner has challenged the order dated 1/4.4.2006 passed by General Manager, Human Resources Management, by which the claim of the Petitioner for compassionate appointment has been rejected.

Learned Counsel for the Petitioner submits that he moved an application for compassionate appointment on 7.12.2005 after the death of his father working as ''Sweeper'' on 5/6.11.2005. The Bank did not consider the application, hence, he approached this Court by means of Writ Petition No. 11593 of 2006, which was disposed of on 27.2.2006 directing the Bank to decide the representation. Pursuant thereto the impugned order has been passed.

Learned Counsel for the Petitioner further contended that the Bank has considered the scheme for compassionate appointment as circulated and amended on 29.11.2005, which was a subsequent amendment in the scheme though his claim ought to be considered in accordance with the circular as was applicable before the said amendment.

The submission is thoroughly misconceived. It is not in dispute that the scheme of compassionate appointment as circulated by the Bank initially on 13.06.1988 was modified on 23.11.1996, 19.2.1997 and the said scheme was revised largely by circular issued on 22.7.2003 w.e.f. 30.5.2003 and it was again amended in July 2005. The Bank decided to provide only lump sump ex-gratia amount in place of compassionate appointment. It is said that in accordance with the amended scheme as applicable on the date of consideration of the Petitioner''s application, his claim for appointment on compassionate basis was rejected. In the supplementary counter affidavit the Bank has placed before this Court the order passed by the Bank on 9.3.2010 allowing ex-gratia lump sump amount to the Petitioner''s mother on her application.

The Apex Court in State Bank of India v. Raj Kumar 2010 (2) LLN 638 : 2010 (125) FLR 572 (SC), while considering a similar issue, negatived the same. Paragraph Nos. 5 and 7 of the aforesaid judgment are quoted below:

5 ... 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 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.

7... As none of the applicants under the scheme has a vested right, the scheme that is in force when the application is actually considered, and not the scheme that was in force earlier when the application was made, will be applicable.... As compassionate appointment is a concession and not a right, the employer may wind up the scheme or modify the scheme at any time depending upon its policies, financial capacity and availability of posts.

The above decision shows that since the compassionate appointment by nature is a concession and not a right, it has to be considered as made applicable to the employees in certain circumstances. No one has any right vested in a particular scheme. It is always liable to change, hence the application had to be considered in the light of the provisions as applicable on the date of consideration of the application and not otherwise.

In view of above exposition of law, I find that the Bank has not erred in law by taking into account the circular dated 29.7.2005, as was applicable on the date of consideration of the Petitioner''s application. Dismissed.