Smt. Vijay Laxmi Singh vs State Bank of India and Another

Satish K. Agnihotri, J.—By this petition, filed under Article 226 of the Constitution of India, the Petitioner seeks a writ of mandamus against the. Respondents for grant of compassionate appointment to the Petitioner.

The indisputable facts, in nutshell, are that the husband of the Petitioner, namely Jainandan Singh, while working as Assistant (Cash/ Accounts) in the office of the Lead Bank, State Bank of India, Bilaspur, died in harness on 19.06.1998 (P-1). The deceased left behind four family members. The Petitioner, being widow of the deceased Late Jainandan Singh, applied for compassionate appointment vide letter dated 21.12.1998 (P-3). Thereafter, certain representations were made on 15.02.1999 (P-4) and 14.08.2002 (P-6). The prayer of the Petitioner for compassionate appointment was rejected vide order dated 27.01.1999 (P-5) on the ground that the Petitioner was not entitled to compassionate appointment under the rules and conditions thereof.

The Petitioner has filed this petition after a period of more than six years on 07.11.2005 on the ground that refusal to appoint the Petitioner on compassionate basis is violation of the provisions of Article 14 read with Article 21 of the Constitution of India. The State Bank of India - Respondents, while refusing appointment, have not stated reasons. The Petitioner is facing great financial crisis.

Mr. Vinay Pandey, learned Counsel appearing for the Petitioner, would submit as aforestated.

Per contra, Mr. Sanjay K. Agrawal, learned Counsel appearing for the Respondents, would submit that the Compassionate Appointment Scheme (henceforth ''the Scheme'') of the State Bank of India - Respondents provides for certain conditions as prescribed in Clause 10 for appointment on compassionate ground. Learned Counsel would further contend that on calculation of the source of income of the Petitioner, it is evident that the Petitioner is earning Rs. 6,232/- per month on account of pension and other monthly income inclusive of notional interest on liquid assets. The deceased - husband of the Petitioner had drawn last gross monthly salary of Rs. 10,948.80 and after deductions, carry-home salary of the deceased - husband was Rs. 4,967/-. Thus, the Petitioner has sufficient income to tide over the financial crisis befallen on the family after death of the deceased - husband. Thus, the Petitioner would not be entitled to compassionate appointment as per the Scheme.

I have heard learned Counsel appearing for the parties and examined the pleadings and the documents appended thereto.

Clause 10 of the Scheme reads as under:

10 Financial condition of the family

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. Determining the financial condition of the family is, therefore, an important criterion for deciding the proposals for compassionate appointment. The following factors should be taken into account for determining the financial condition of the family:

(i) family pension

(ii) gratuity amount received

(Hi) employee''s/employer''s contribution to Provident Fund

(iv) any compensation paid by the Bank or its Welfare Fund

(v) proceeds of LIC Policies and other investments of the deceased employee

(vi) income or family from other sources (vii) income of other family members from employment, or other sources

(viii) size of the family and verifiable liabilities, if any.

As per the letter (R-3), income of the Petitioner is calculated at Rs. 6,232/-. It reads as under:

The Hon''ble Supreme Court, in the matter of Punjab National Bank and Others Vs. Ashwini Kumar Taneja, , while dealing with the identical scheme on compassionate appointment, held as under:

... It is to be seen that the appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding appointments being made on open invitation of application on merits. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood: The object is to enable the family to get over sudden financial crisis.

The Hon''ble Supreme Court, in the case of Commissioner of Public Instructions and Others Vs. K.R. Vishwanath, , while dealing with the question of the object of the compassionate appointment, observed as under:

As was observed in State of Haryana v. Rani Devi, it need not be pointed out that the claim of person concerned for appointment on compassionate ground is based on the premises that he was dependant on the deceased employee. Strictly this claim cannot be upheld on the touchstone of Articles 14 or 16 of the Constitution. However, such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative orders which can stand the test of Articles 14 and 16. Appointment on compassionate ground cannot be claimed as a matter right. Die-in-harness scheme cannot be made applicable to all types of posts irrespective of the nature of service rendered by the deceased employee. In Rani Devi case it was held that scheme regarding appointment on compassionate ground if extended to all types of casual or ad hoc employees including those who worked as apprentices cannot be justified on constitutional ground. In LIC of India v. Asha Ramchandra Ambekar it was pointed out that High Courts and Administrative Tribunals cannot confer benediction implied by sympathetic considerations to make appointments on compassionate grounds when the regulations framed in respect thereof do not cover and contemplates such appointments. It was noted in Umesh Kumar Nagpal v. State of Haryana that as rule in public service appointment should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of employee while in service leaving his family without any means of livelihood. In such cases the object is to enable the family to get over sudden financial crisis. But such appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased." "10. In Sushma Gosain v. Union of India it was observed that in all claims of 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 appointments should, therefore, be provided immediately to redeem the family in distress. The fact that the ward was a minor at the time of death of his father is no ground, unless the scheme itself envisage specifically otherwise, to state that as and when such minor becomes a major he can be appointed without any time consciousness or limit. The above view was reiterated in Phoolwati v. Union of India and Union of India v. Bhagwan Singh. In Director of Education (Secondary) v. Pushpendra Kumar, it was observed that in matter of compassionate appointment there cannot be insistence for a particular post. Out of purely 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 ends meet, provisions are made for giving appointment to one of the dependants of the deceased who may be eligible for appointment. Care has, however, to be taken that provision for ground of compassionate employment which is in the nature of a exception to the general provisions does not unduly interfere with the right of those other persons who are eligible for appointment to seek appointment against the post which would have been available, but for the provision enabling appointment being made on compassionate grounds of the dependant of the deceased employee. As it is in the nature of exception to the general provisions it cannot substitute the provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision.

It is well settled that the appointment on compassionate ground is not a method of recruitment, but is a facility to provide for immediate rehabilitation of the family in distress for relieving the dependent family members of the deceased employee from destitution. In other words, the object of compassionate appointment is to enable penurious family to tide over the sudden financial crisis and is not to provide employment. It is also well settled that mere death of the employee does not entitle his family to claim compassionate appointment if the family members could sustain themselves financially from other sources of income.

The Supreme Court, in State of Jammu & Kashmir and Others Vs. Sajad Ahmed Mir, , after having considered all the aspects of compassionate appointment, observed as under:

... It is that such an appointment is an exception to the general rule. Normally, an employment in the Government or other public sectors should be open to all eligible candidates who can come forward to apply and compete with each other. It is in consonance with Article 14 of the Constitution. On the basis of competitive merits, an appointment should be made to public office. This general rule should not be departed from except where compelling circumstances demand, such as, death of the sole breadwinner and likelihood of the family suffering because of the setback. Once it is proved that in spite of the death of the breadwinner, the family survived and substantial period is over, there is no necessity to say "goodbye" to the normal rule of appointment and to show favour to one at the cost of the interests of several others ignoring the mandate of Article 14 of the Constitution.

Applying the settled principle of law as enunciated by the Hon''ble Supreme Court in various cases (supra), it is well settled that the compassionate appointment, which is not in accordance with the constitutional scheme of employment, is to mitigate the hardships causes due to untimely death of the employee. In the present case, the family of the deceased employee has not questioned the refusal of grant of appointment for more than six years. It means that the Petitioner had no hardship during this period. Thus, the Petitioner is not entitled to grant of compassionate appointment.

As a result, for the reasons stated hereinabove, the writ petition is dismissed. No order as to costs.