Gen.Manager,State Bank Of India & Ors vs Anju Jain

March 2, 2006 in C.M.W.P. No. 45006 of 2001 and 2

confirmed by the Division Bench of the said

Court on April 25, 2007 in Special Appeal No.

390 of 2006. By the said order, the High Court

allowed the petition filed by Smt. Anju Jain,

writ-petitioner (respondent herein) and

directed the State Bank to provide her

appointment on compassionate ground on the

death of her husband.

3. Shortly stated the facts of the case

are that Mr. Jain, husband of the respondent-

writ petitioner was working as Assistant with

the State Bank at Karhall Branch, Agra in the

State of U.P. In September, 1995, he was placed

under suspension and charge-sheeted for having

committed gross misconduct of embezzlement/

misappropriation. Departmental inquiry was

instituted against him wherein he was found

guilty. In 1996, on the basis of findings

recorded by the Inquiry Officer and accepted by

the Disciplinary Authority, major punishment

was imposed on him by which his basic pay was

reduced by two stages and five annual future 3

increments were also stopped with cumulative

effect. Husband of the writ-petitioner,

however, died on January 25, 2000 while in

service in the State Bank.

4. The State Bank had framed a scheme for

appointment on compassionate grounds for

dependents of deceased employees/employees

retired on medical grounds with effect from

January 01, 1979. It was modified from time to

time. At the relevant time, when the husband

of the writ-petitioner died (January 25, 2000),

the policy as amended with effect from January

01, 1998 was in force.

5. In accordance with the policy of

giving employment on compassionate ground to

dependents of a deceased employee, the writ-

petitioner, as the widow of the deceased

applied to the State Bank in March, 2000. The

competent authority of the Bank considered the

case of the writ petitioner and keeping in view

the punishment imposed on the deceased

employee, it rejected the prayer of the writ 4

petitioner and informed her that no such

appointment could be given to her. A

representation was made by the writ petitioner

but it was also rejected on July 16, 2001.

6. Aggrieved by the action of the State

Bank, the writ petitioner filed a petition in

the High Court by invoking Article 226 of the

Constitution. A Single Judge of the High Court,

after referring to the scheme of giving

appointment on compassionate grounds to

dependents of deceased employees and also

considering the case of the writ-petitioner,

allowed the petition holding that the writ

petitioner was entitled to the benefit of

appointment on compassionate ground as the

dependent of the deceased employee. The said

right, which had accrued in her favour, could

not be taken away by the State Bank only on the

ground of misconduct on the part of her husband

for which he was punished, observed the Single

Judge. Accordingly, a direction was issued by 5

the Single Judge to appoint the writ

petitioner.

7. The State Bank, being aggrieved by the

said order, approached the Division Bench of

the High Court by filing intra-Court appeal but

the Division Bench also confirmed the order

passed by the learned Single Judge and

dismissed the appeal. The said order is

challenged in the present appeal.

8. Notice was issued on May 17, 2007 and

after hearing the parties, the Registry was

directed to place the matter for final hearing

on May 01, 2008. We have accordingly heard

learned counsel for the parties.

9. The learned counsel for the appellant-

Bank contended that the orders passed by the

High Court are illegal, improper and contrary

to law. It was submitted that appointment on

compassionate ground is never considered to be

a right of a dependent of deceased employee. It

is a benefit granted to a dependent of an 6

employee who dies in harness and is thus an

exception to the general rule of `equality

clause' guaranteed by Article 14 of the

Constitution. Such appointment, hence, can only

be given in accordance with the policy adopted

or scheme framed by the employer.

10. It was also submitted that if the

employee has committed misconduct for which he

was punished, the dependent of such employee

cannot claim the benefit of appointment on

compassionate ground. According to the counsel,

both the Courts were wholly wrong in holding

that the writ petitioner was sought to be

punished for so called misdeeds of the deceased

employee. The counsel submitted that there was

no question of punishing the writ petitioner in

not granting appointment on compassionate

ground. The husband of the writ petitioner had

committed misconduct which was proved in the

inquiry instituted against him and he was

punished. As per the policy, the writ 7

petitioner cannot claim appointment on

compassionate ground. There was no accrued

right in favour of the writ-petitioner. The

order passed by the learned Single Judge and

confirmed by the Division Bench, therefore,

deserves to be set aside.

11. Alternatively, it was submitted that

even if a dependent of the deceased employee is

held eligible to get an appointment on

compassionate ground, it is well settled law

that mandamus can be issued against the

employer limited to ordering him to consider

the case of such applicant. No direction can be

issued to appoint the writ-petitioner on

compassionate ground. Even on that count, the

orders are liable to be set aside.

12. The learned counsel for the writ

petitioner, on the other hand, supported the

order passed by the learned Single Judge and

confirmed by the Division Bench. It was

submitted that for the so called misconduct,

the husband of the writ petitioner was already 8

punished. The matter, therefore, ended there.

Thereafter, it was not open to the Bank in the

light of the policy in vogue to refuse

appointment on compassionate ground to deprive

the writ petitioner of such appointment. The

learned Single Judge was, therefore, right in

allowing the petition. And the Division Bench

was not wrong in not interfering with the said

order.

13. The counsel conceded that normally, a

writ Court will direct the employer only to

consider the case of the dependent of deceased

employee for appointment on compassionate

ground. He, however, submitted that on the

facts of the case, the only ground which

weighed with the Bank was that the husband of

the writ petitioner was punished and, hence,

his widow could not be granted the benefit

under the scheme. If in the light of the said

fact, an order was passed to appoint the writ

petitioner, it could not be said that by

issuing such direction, the learned Single 9

Judge had exceeded his jurisdiction. The

Division Bench was, therefore, right in

dismissing the appeal and no interference is

called for in exercise of discretionary

jurisdiction under Article 136 of the

Constitution.

14. Having heard learned counsel for the

parties, in our opinion, the appeal deserves to

be allowed by setting aside the order passed by

the learned Single Judge and confirmed by the

Division Bench.

15. It is an admitted fact that the

husband of the writ petitioner was serving with

the appellant Bank. He indulged in illegalities

and committed misconduct for which departmental

proceedings were initiated against him. An

Inquiry Officer was appointed, who after giving

opportunity of hearing to the deceased

employee, recorded a finding that the charges

levelled against the employee were proved. A

report was submitted by the Inquiry Officer to

the Disciplinary Authority. The Disciplinary 10

Authority, after following the principles of

natural justice and affording opportunity of

hearing to the employee by supplying a copy of

the Inquiry Officer's report, agreed with the

findings and imposed major penalty by reducing

basic pay of the delinquent by two stages and

stoppage of five annual future increments with

cumulative effect. The said order had attained

finality.

16. It is also not in dispute that in

January, 2000, the employee expired and an

application for appointment on compassionate

ground was submitted by his widow, the writ

petitioner. At that time, the appellant Bank

was governed by scheme which was in force with

effect from January 01, 1978 as amended up to

January 01, 1998.

17. The counsel for the State Bank invited

our attention to the scheme for appointment on

compassionate grounds for dependents of

deceased employees. As per the policy, such

benefit could be granted in certain cases. 11

Para 6 of the scheme laid down `Method of

appointment'. Clause (d) of the said para dealt

with cases where disciplinary actions had been

taken against an employee. The said clause

read as under:

(d) In cases where disciplinary action had been taken against the employee or disciplinary proceedings were pending/ contemplated against him/her, appointment of a dependent on compassionate grounds may be considered only after obtaining prior Government concurrence.

18. Since the disciplinary proceedings

against the deceased employee culminated in

major punishment and an application was made by

his widow for appointing her on compassionate

ground, the Bank referred the matter to the

Government of India. The matter was considered

by the Government but it was remitted to the

Bank to take an appropriate decision in

accordance with law.

19. The Bank again considered the proposal

for appointment on compassionate ground of the

writ-petitioner but declined to grant such 12

benefit in view of punishment imposed on her

husband.

20. In para 3 of the communication, dated

January 29, 2001, the Managing Director of the

appellant Bank stated;

"In this connection, we have to advise that although our scheme for compassionate appointments does not explicitly state that the deceased employee should have had unblemished service, this is implied: In view of the gross misconduct of late D.K. Jain, the competent authority at this office has declined the proposal for compassionate appointment of his wife Smt. Anju Jain in the Bank".

21. It was submitted on behalf of the Bank

that if the services of the employee were not

fully satisfactory and he was found guilty at

the departmental inquiry and was punished for

misconduct, it was open to the employer not to

grant the benefit of appointment on

compassionate ground to the dependent of such

tainted employee after his death. If on that

ground, an order is passed, it cannot be 13

objected on the ground that no such action

could have been taken.

22. In our opinion, the submission is

well-founded and must be upheld. The learned

counsel for the State Bank also referred to the

scheme for compassionate appointments as framed

in 1979 and amended in 1998 which was further

amended in 2003. The said scheme reads as

"Scheme for compassionate appointments

amendments in respect of cases where the

deceased employee/employees retired on health

grounds had been involved in major/gross

misconduct".

23. Certain new provisions were added in

the scheme for compassionate appointments. A

clause relating to `exclusions' was inserted in

para 5 dealing with eligibility. Clause (f)

relating to misconduct of an employee who died

in harness or retired on health ground which

was added, reads as under:

(f) The dependents of an employee who has died or who has retired on health grounds and whose service record was 14

blemished on account of disciplinary action having been taken against him will be ineligible for compassionate appointment in the bank.

24. Bare reading of the above clause makes

it abundantly clear that the dependent of an

employee who had died or retired on medical

ground but whose service record was blemished

on account of disciplinary action having been

taken against him will not be considered

eligible for compassionate appointment in the

Bank.

25. As observed earlier, the writ

petitioner approached the High Court relying on

the scheme for compassionate appointment of

1979 as amended with effect from January 01,

1998. It was submitted by her that her husband

was an employee of the Bank, departmental

proceedings were initiated and he was punished.

It was, thereafter, not open to the appellant

Bank to refuse appointment to her on

compassionate ground as she could not be 15

punished for misdeeds alleged to have been

committed by her husband.

26. The submission weighed with the

learned Single Judge who allowed the petition

and observed;

"I have heard learned Counsel for the parties at length and looked into the record of the case as well as the authorities cited by the learned Counsel for the petitioner and I find that at the time when the petitioner applied for compassionate appointment on the death of her deceased husband, the earlier Scheme was applicable to the petitioner's case and the amended Scheme came into force from May, 2002. I am of the view that the inapplicable provisions of the clauses of the amended Scheme could not be taken resort to by the respondents as a ground to deprive/scuttle the rightful benefits that accrued to the petitioner only due to some charges of misconduct of the deceased husband of the petitioner for which he had already been penalized. No past acts of misconduct of the employee who dies in harness can be taken into account while considering the case of a family member for employment on compassionate ground, as it is not a benefit provided to the deceased employee but for providing immediate succor to its dependents to survive. The decision of the 16

respondents is impermissible in the eye of law being in violation of the principles of natural justice".

27. The Single Judge, hence, issued the

following directions;

"In the result, the petition succeeds and is allowed and the impugned orders dated 21.05.2001 and 16.07.2001 (Annexures No. 2 and 4 to the writ petition) are hereby quashed. Accordingly the respondent-Bank is directed to provide an appointment to the petitioner on compassionate ground on account of the death of her husband, in accordance with law and in terms of the earlier scheme, which was in force at that time within one month from the date a certified copy of this order is placed before the concerned authority-respondent Bank. There will be no order as to costs."

28. When the appeal was filed by the State

Bank against the order passed by the Single

Judge, the Division Bench held that the learned

Single Judge was right in issuing necessary

directions and there was no infirmity. The

Division Bench observed;

"From the record, it is evident that after the death of the said 17

employee, the present appellants have also changed the scheme and introduced clause (1) to appointment on compassionate grounds. Past misconduct of an employee who dies in harness should also be taken into consideration while considering the application for compassionate employment of his dependent. However, the said amendment in the policy does not operate retrospectively and the learned Single Judge has rightly held that past act of misconduct of the said employee could not have been taken into consideration".

29. We are of the view that both the

Courts were wrong in granting relief to the

writ petitioner. Appointment on compassionate

ground is never considered a right of a person.

In fact, such appointment is violative of rule

of equality enshrined and guaranteed under

Article 14 of the Constitution. As per settled

law, when any appointment is to be made

in Government or semi-Government or in public

office, cases of all eligible candidates must

be considered alike. That is the mandate of

Article 14. Normally, therefore, State or its

instrumentality making any appointment to 18

public office, cannot ignore such mandate. At

the same time, however, in certain

circumstances, appointment on compassionate

ground of dependents of deceased employee is

considered inevitable so that the family of the

deceased employee may not starve. The primary

object of such scheme is to save the bereaved

family from sudden financial crisis occurring

due to death of sole bread earner. It is thus

an exception to the general rule of equality

and not another independent and parallel source

of employment.

30. In our opinion, therefore, if

disciplinary proceedings have been initiated

against an employee and the charges levelled

against such employee are proved and he is

punished, it is indeed a relevant consideration

for not extending the benefit to dependent of

such employee on the ground that he was

punished. To us, it cannot be said that it is a

case of double jeopardy or a dual punishment.

Compassionate appointment is really a 19

concession in favour of dependents of deceased

employee. If during his carrier, he had

committed illegalities and the misconduct is

proved and he is punished, obviously his

dependents cannot claim right to the

employment. With respect, the learned Single

Judge was wholly wrong in observing that such

an action would be violative of principles of

natural justice.

31. To us, the observation of the learned

Single Judge that "no past acts of misconduct

of the employee who dies in harness can be

taken into account while considering the case

of a family member for employment on

compassionate ground" is not in consonance with

law. Past conduct of an employee is undoubtedly

an important consideration. We are also of the

view that the State Bank was right in rejecting

the prayer of the wife of the deceased employee

vide its letter dated January 29, 2001

observing therein that "unblemished service

record is implicit".

20

32. The learned counsel for the Bank

invited our attention to a decision of the High

Court of Delhi in Suman Lata Yadav v. Union of

India & Anr., (2004) 113 DelLT 152. In that

case, widow of a deceased employee sought

employment on compassionate ground following

death of her husband. The request was declined.

The widow approached the High Court by filing a

writ petition. A counter affidavit was filed by

the Union of India stating therein that on

account of disciplinary proceedings and

punishment meted out to the deceased, the

request of the widow for appointment on

compassionate ground was turned down.

33. It was contended on behalf of the

widow that the action of the Union of India was

illegal and appointment on compassionate ground

could not be denied.

34. Dismissing the petition and negativing

the argument on behalf of the widow, a Single

Judge of the High Court stated;

21

"I am unable to accept this submission. While it is true that the prime object is to provide succour and immediate relief, yet the deceased's service record or the factum of disciplinary proceedings and punishment meted out to him, cannot be said to be an irrelevant factor. The possibility of denial of compassionate appointment to the LRs of deceased on account of deceased employee having a tainted service record, would serve as a deterrent to employees from indulging in misconduct. It can act as an incentive for those maintaining discipline and probity. Besides, when the availability of appointment and opportunities is limited, there is nothing wrong in preferring LRs, of those employees with clean record over the LRs, of those, who have had a tainted record."

35. In our opinion, the above observations

lay down correct proposition of law and we

approve them.

36. To us, therefore, the State Bank was

right in refusing appointment on compassionate

ground to the widow of deceased employee of the

Bank even under the policy in force in year

2000. We see no illegality in the action. We 22

hold that the learned Single Judge as well as

the Division Bench were not right in observing

that since the deceased employee was

punished, the matter ended there and the

said punishment would be of no consequence so

far as appointment of his dependent on

compassionate ground of the deceased employee

was concerned.

37. Even on second ground, the submission

of the Bank is well-founded. As noted earlier,

the learned Single Judge issued direction to

the Bank to appoint the writ petitioner-widow

of the deceased employee within one month. As

per settled law, a writ of mandamus can be

issued directing the authority to consider the

case of the petitioner for an appointment or

promotion as the case may be but no direction

can be given to appoint or promote a person.

38. In State of Mysore & Anr. v. Syed

Mahmood & Ors., (1968) 3 SCR 363, promotion to

the higher post was to be given on the basis of

seniority-cum-merit. A was not promoted. He, 23

therefore, filed a petition in the High Court

of Mysore by invoking Article 226 of the

Constitution claiming promotion. The High Court

issued a writ of mandamus directing the

Government to promote A. The aggrieved State

approached this Court.

39. Allowing the appeal and setting aside

the direction of the High Court ordering the

State to give promotion, this Court held that

at the most, the High Court could have issued

mandamus directing the State to reconsider the

case of the writ petitioner on the correct

principle. It could not have issued a direction

to the employer to promote the writ petitioner

with retrospective effect. Syed Mahmood was

followed by this Court in several cases.

40. The learned counsel for the

respondent, no doubt, referred to a decision in

State of Bihar v. Dr. Braj Kumar Mishra &

Ors., (1999) 9 SCC 546 wherein this Court held

that normally mandamus can be issued by a writ

Court directing the authority to consider the 24

case of the writ petitioner. In exceptional

circumstances, however, a positive direction

can be issued by granting relief in favour of

the writ petitioner if the Court is otherwise

satisfied.

41. The Court stated;

"It is true that normally the Court, in exercise of its power under Article 226/227 of the Constitution of India, after quashing the impugned order should remand the matter to the concerned authority particularly when such authority consists of experts for deciding the issue afresh in accordance with the directions issued and the law laid down by it but in specified cases, as the instant case, nothing prevented the Court to issue directions when all the facts were admitted regarding the eligibility of the respondent No, 1 and his possessing of the requisite qualifications. Remand to the authorities would have been merely a ritual and ceremonial.

Keeping in mind the lapses attributable to the Commission which had failed to take appropriate action despite

recommendation made in favour of the respondent No. 1, the learned Single Judge as also the Division Bench of the High Court felt it necessary to declare the respondent No. 1-promoter with effect from 1.2.1985. We do not find any 25

illegality or error of jurisdiction. Learned counsel appearing for the appellants were apprehensive that if the impugned judgment is not set aside, it may become precedent and in other cases pertaining to the University, such directions may be issued in future also preventing the authorities and the State Government from exercising their statutory powers. The apprehension is misconceived and without any substance. To allay even such apprehension we deem it appropriate to clarify that the impugned judgment has been passed under peculiar circumstances of the case and is no precedent with respect to the subject regarding which the appellants have conceived an apprehension".

(emphasis supplied)

42. Apart from the fact that in `peculiar

circumstances', a positive direction was issued

by this Court and it was stated that the

decision `is no precedent' with respect to the

subject, in our opinion, in the present case,

the second stage did not arise at all. As we

have held that even under the policy in force

in 2000, the appellant Bank was wholly right

and fully justified in declining the prayer of 26

the widow of deceased employee in rejecting her

prayer for extending benefit of appointment on

compassionate ground. The orders passed by

both the Courts are, therefore, liable to be

set aside on that ground alone.

43. For the aforesaid reasons, the appeal

is allowed, the order passed by the Single

Judge and confirmed by the Division Bench of

the High Court is set aside and the writ

petition filed by the widow of deceased

employee of the State Bank for getting an

appointment as dependent of deceased employee

on compassionate ground is ordered to be

dismissed.

44. On the facts and in the circumstances

of the case, however, the parties are ordered

to bear their own costs.

.........................................................J. (C.K. THAKKER)

NEW DELHI, .........................................................J. AUGUST 25, 2008. (D.K. JAIN)