Sanjeev Kumar vs Union of India (UOI) and Others

S.S. Nijjar, J.—The petitioner claims appointment on compassionate grounds. The claim of the petitioner has been rejected by respondent No. 2 .i.e State Bank of India by order dated 12.01.2006 which has been communicated to the petitioner through letter No. R-1 Staff/8453 dated 19.01.2006. He claims a writ in the nature of mandamus directing the respondents to consider the petitioner against a post commensurate to his educational qualifications.

We may briefly notice the facts leading to the claim made by the petitioner.

The father of the petitioner was appointed as Guard in the establishment of respondent Nos. 2 and 3. He died in harness at the age of 50 years on 26.03.2001 while working as Head Guard in the Board of respondent No. 3 i.e. Assistant General Manger, State Bank of India, Region -1, Zonal Office, Haryana, Panchkula (Haryana). On 28.01.2002 the petitioner sent a representation to the respondents for appointment on compassionate grounds. He claims that the deceased i.e. his father is survived by his widow, two sons and one daughter. The sons had to abandon the study after the death of their father because of financial crisis. The widow of the deceased was given monthly pension of Rs. 2,858/-. The request of the petitioner was declined by respondent No. 2 by order dated 28.01.2002, a non-speaking order. The petitioner filed C.W.P. No. 7503 of 2002 challenging the aforesaid order. The writ petition was allowed by order dated 05.12.2002 by passing the following order:

The petitioner sought appointment on compassionate grounds on the plea that his father who was a Head Guard in the Bank has died on 25.3.2002 while in the service of Bank leaving the family in penury. Appointment to the petitioner was denied by order Annexure P-2 dated 7.7.2002. Although the aforesaid order given no reasons for declining the petitioner''s request but in the reply it has been pleaded that the family was not in distress as they were drawing family pension and interest on the other monetary benefit released to the family. Details have been given in paragraph 3 of the reply. We find, however, that the case is covered in favour of the petitioner by the judgment of this Court in C.W.P. No. 5326 of 2002 titled Naveen Kumar v. Union of India and Ors.decided on 25.8.2003 and C.W.P. No. 12552 of 2001 titled Sukhdev Singh v. Union of India and Ors.decided on 9.9.2003, wherein it has been held that while assessing the income of the family of the deceased; family pension is not to be counted towards the income of the family so as to deny appointment to a member of the family.

We accordingly, following the judgments aforesaid quash the order Annexure P-2 and direct the respondents to reconsider the matter in the light of the observations made in those judgments within a period of three months from the date of receipt of a certified copy of the order. No order as to costs. Dasti.

Sd/-H.S. Bedi, Judge Sd/- Kiran Anand Lall, Judge

The respondents instead of complying with the aforesaid directions of this Court, filed SLP No. 9088 of 2004 challenging the aforesaid judgment. The SLP was disposed of on 21.10.2005 by directing the authorities concerned to re-consider the appointment on compassionate grounds in the light of the decision of the Supreme Court in the case of General Manager (D and PB) and Others Vs. Kunti Tiwary and Another, , within a period of three months. In compliance with the aforesaid order of the Supreme Court, the respondents have passed an elaborate speaking order dated 12.01.2006, again rejecting the claim of the petitioner for appointment on compassionate grounds. The petitioner has now challenged the aforesaid order which is attached as Annexure P-2 by filing this petition under Articles 226/227 of the Constitution of India.

Before we proceed to adjudicate on the merits of this case, we may also notice some other facts relied upon by the petitioner in the writ petition. He claims that he has no source of income after the death of his father who was the only bread winner. The widow has been given a monthly pension of Rs. 2,858/- with effect from 31.12.2001 to 02.06.2006. Thereafter, she would be paid Rs. 1,913/- till death or re-marriage under the Family Pension Scheme. Now the respondents have vindictively reduced the family pension to Rs. 1,913/- w.e.f. April, 2006. This meager amount is not at all sufficient for the bare survival of the family. The petitioner has passed the Matriculation Examination after the death of his father. The High Court in its order dated 05.12.2003 had directed the respondents to consider the claim of the petitioner on the basis of the decision of this Court in Naveen Kumar and Sukhdev Singh''s case (supra). Instead of complying with the aforesaid order, the respondents vindictively filed SLP in the Supreme Court. The respondents, mischievously to mis-lead the Court, filed a wrong affidavit by showing the monthly family pension drawn by the widow as Rs. 5,320/- when, in fact, the correct amount was Rs. 2,858/-. This misstatement was repeated before the Supreme Court. The respondent had to apologize for the same in the Supreme Court by filing a rejoinder affidavit dated 16.3.2005.

We have heard the learned Counsel for the petitioner at length and perused the record of the case.

It is submitted by the learned Counsel for the petitioner that the decision taken by the respondents repeatedly to deny the appointment on compassionate grounds to the petitioner is arbitrary. The respondents have denied social justice to the petitioner. It is an obligation of the law Courts to apply the law "depending in a manner whichever is beneficial for the society." The reasons stated by the respondents in the impugned order are not relevant. The income of the family is wholly irrelevant for determining as to whether the petitioner can be appointed on compassionate grounds.

We have considered the submissions made by the learned Counsel for the petitioner.

The Supreme Court in the order dated 21.10.2005 directed the respondents to consider the claim of the petitioner in the light of the decision in the case of Kunti Tiwari''s case (Supra). The respondents have now considered the claim of the petitioner and rejected the claim for a number of reasons. The respondent-bank had introduced a scheme of compassionate appointment in the year 1997. The scheme was amended/updated from time to time. When the father of the petitioner died, the scheme updated up to 1.01.1998 was in operation. In the aforesaid scheme, it is provided as under:

The object of granting compassionate appointment is to enable the family to tide over the sudden crisis by the death of bread-winner. The mere death of an employee in harness does not entitle his family to such livelihood. The object is to offer compassionate appointment only when the bank is satisfied that the financial condition of the family is such that but for the provision of the employment, the family will not be able to meet the crisis.

The aforesaid provision, in our opinion, is in consonance with the law laid down by the Supreme Court in the case of Umesh Kumar Nagpal Vs. State of Haryana and Others, . In the aforesaid case, the Supreme Court has categorically held that "as a rule, appointments 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. However, an exception, out of pure humanitarian considerations has been made in favour of the dependents of an employee dying in harness and leaving his family in penury and without any means of livelihood. A provision is, therefore, made to enable the family to make both ends meet. The whole object of granting compassionate employment is to enable the family to tide over the sudden crises. The objection is not to give a member of such family a post much less a post for the post held by the deceased. Furthermore, 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 aforesaid observations make it abundantly clear that the aim and objective of granting appointment on compassionate ground is not to replace the deceased employee with a dependent of the deceased. It is to be granted only where family is suffering from abject penury and is without any source of livelihood. In the present case, the respondents have passed a speaking order. The respondents have considered the claim of the petitioner on the basis of the judgment of the Supreme Court in the case of General Manager (D&PB) and Ors. v. Kunti Tiwary and Anr. in Civil Appeal No. 126 of 2004 arising out of SLP (C) No. 2644 of 2003. In Kunti Tiwary''s case, the claim of the petitioner had been rejected by the respondent-bank under the scheme updated up to 01.01.1998. The respondents took into account the financial condition of the family and came to the conclusion that it was not living in abject penury and, therefore, appointment on compassionate grounds could not be granted to the son of the deceased. He had, therefore, filed Civil Writ Petition. A Single Judge of the High Court upheld that order. However, reversing the decision, the Division Bench directed the Bank to appoint the son of the deceased in accordance with its policy. The Bank then filed the SLP in the Supreme Court. Allowing the appeal of the Bank, the Supreme Court relied upon the earlier decision in Umesh Kumar Nagpal ''s case (supra). The Supreme Court also noticed the express language for appointment on compassionate grounds as contained in the scheme which was effective on 01.01.1998, the provision is as follows:

Appointments in the public services are made strictly on the basis of open invitation of applications and merit. However, exceptions are made in favour of dependents of employees dying in harness and leaving their family in penury and without any means of livelihood.

The scheme clearly provided that in order- to determine the financial condition of the family, the following amounts will have to be taken into account:

(c) Family pension

(d) Gratuity amount received.

(c) Employee''s /employer''s contribution to provident fund.

(d) Any compensation paid by the bank or its Welfare Fund.

(e) Proceeds of L.I.C. policy and other investments of the deceased employee.

(f) Income of family from other sources.

(g) Employment of other family members.

(h) Size of the family and liabilities, if any, etc.

This criteria which is contained in the updated scheme dated 01.01.1998 has been duly approved by the Indian Banks Association. The respondents have considered the claim of the petitioner on the basis of the law laid down by the Supreme Court in Kunti Tiwary''s case (supra). It has been observed that the financial position of the family of the deceased employee, at the time of his death, as ascertained from the original record was as under:

Assets and liabilities. i) Terminal Benefits & Investment: a) Provident Fund Rs. 1,90,746.00 b) Gratuity Rs. 1,09,326.00 c) Leave Encashment Rs. 57,519.00 d) NCSs Rs, 7,000.00 Total: Rs. 3,64,519.00 Less liabilities (Loan from Co-op Rs. 18,500.00 Societies). Net surplus Rs. 3,64,091.00 ii) Monthly family income: a) Family pension from Bank Rs. 2,858.00 Interest income from the terminal Rs. 2,587.00 Benefits of Rs. 3.46 lacs. Total Rs. 5,445.00

Keeping in view the aforesaid facts and circumstances, it would not be possible to hold that the petitioner has made out a case of any exceptional hardship for out of turn appointment on compassionate grounds.

We find no merit in the petition. Dismissed.