State Bank Of India & Anr vs Raj Kumar

STATE BANK OF INDIA & ANR. ... APPELLANTS

VS.

RAJ KUMAR ... RESPNDENT

O R D E R

R.V.RAVEENDRAN, J.

Leave granted. Heard the parties.

2. The respondent's father employed as a Messenger in

the Appellant Bank, died on 1.10.2004. Respondent's mother

made applications dated 6.6.2005 and 14.6.2005 requesting

for his appointment on compassionate grounds. When the

applications were being processed and verified, the

compassionate appointment scheme was substituted by the

"SBI Scheme for payment of ex-gratia Lumpsum Amount" with

effect from 4.8.2005. The new scheme abolished the old 2

scheme for compassionate appointments and instead provided

for payment of an ex gratia lumpsum amount as per its

terms. Clauses 14 and 15 of the new scheme relevant for

our purpose are extracted below:

"14. Date of effect of the Scheme and disposal of pending applications:

..........Applications pending under the Compassionate Appointment Scheme as on the date on which this new Scheme is approved by the Executive Committee of the Central Board will be dealt with in accordance with the new Scheme for payment of ex-gratia lumpsum amount provided they fulfill all the terms and conditions of this Scheme.

15. Miscellaneous provisions of the Scheme

x x x x x x x x x

vi. With effect from the date the "SBI Scheme for Payment of Ex-gratia Lumpsum Amount" comes into force the Bank's scheme of compassionate appointments shall be deemed abolished/withdrawn and no request for compassionate appointment shall be entertained or considered by the Bank under any circumstance."

3. As the old scheme came to be abolished and

compassionate appointment was no longer permissible after

the new scheme came into force, the Bank on 31.1.2006

advised the family of the deceased to make an application

under the new scheme for ex-gratia payment. Feeling

aggrieved, the respondent filed a writ petition before the 3

Allahabad High Court. A learned single Judge of the High

Court by order dated 8.5.2008 directed the appellant to

reconsider the case of the respondent for appointment on

compassionate grounds, holding that the old scheme applied

and the new scheme was only prospective in operation. The

said order was affirmed by the Division Bench by order

dated 1.9.2008, which is under challenge in this appeal by

special leave.

4. Learned counsel for the Bank submitted that even

though the respondent's father died on 1.10.2004, the

application for compassionate appointment was made only in

June 2005; that before the application could be processed,

the compassionate appointment scheme was abolished and was

replaced by a new scheme on 4.8.2005; and that therefore,

the Bank was justified in calling upon the respondent to

apply under the new ex-gratia scheme.

5. On the other hand, learned counsel for the

respondent submitted that on the date of death of his

father and on the date of making the application, the

compassionate appointment scheme was in force and

therefore, he was entitled to be considered for

compassionate appointment under the said scheme.

6. It is now well settled that appointment on 4

compassionate grounds is not a source of recruitment. On

the other hand it is an exception to the general rule that

recruitment to public services should be on the basis of

merit, by an open invitation providing equal opportunity

to all eligible persons to participate in the selection

process. The dependants of employees, who die in harness,

do not have any special claim or right to employment,

except by way of the concession that may be extended by

the employer under the Rules or by a separate scheme, to

enable the family of the deceased to get over the sudden

financial crisis. 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 that

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. Normally the three basic requirements to claim

appointment under any scheme for compassionate appointment

are: (i) an application by a dependent family member of 5

the deceased employee; (ii) fulfillment of the eligibility

criteria prescribed under the scheme, for compassionate

appointment; and (iii) availability of posts, for making

such appointment. If a scheme provides for automatic

appointment to a specified family member, on the death of

any employee, without any of the aforesaid requirements,

it can be said that the scheme creates a right in favour

of the family member for appointment on the date of death

of the employee. In such an event the scheme in force at

the time of death would apply. On the other hand if a

scheme provides that on the death of an employee, if a

dependent family member is entitled to appointment merely

on making of an application, whether any vacancy exists or

not, and without the need to fulfill any eligibility

criteria, then the scheme creates a right in favour of the

applicant, on making the application and the scheme that

was in force at the time when the application for

compassionate appointment was filed, will apply. But such

schemes are rare and in fact, virtually nil.

8. Normal schemes contemplate compassionate appointment on

an application by a dependent family member, subject to

the applicant fulfilling the prescribed eligibility

requirements, and subject to availability of a vacancy for

making the appointment. Under many schemes, the applicant 6

has only a right to be considered for appointment against

a specified quota, even if he fulfils all the eligibility

criteria; and the selection is made of the most deserving

among the several competing applicants, to the limited

quota of posts available. In all these schemes there is a

need to verify the eligibility and antecedents of the

applicant or the financial capacity of the family. There

is also a need for the applicant to wait in a queue for a

vacancy to arise, or for a selection committee to assess

the comparative need of a large number of applicants so as

to fill a limited number of earmarked vacancies.

Obviously, therefore, there can be no immediate or

automatic appointment merely on an application. Several

circumstances having a bearing on eligibility, and

financial condition, upto the date of consideration may

have to be taken into account. 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. Further where the earlier

scheme is abolished and the new scheme which replaces it

specifically provides that all pending applications will

be considered only in terms of the new scheme, then the

new scheme alone will apply. As compassionate appointment

is a concession and not a right, the employer may wind up 7

the scheme or modify the scheme at any time depending upon

its policies, financial capacity and availability of

posts.

9. In this context we may usefully refer to the decision

of this Court in Union of India vs. R. Padmanabhan - 2003

(7) SCC 270, wherein this Court observed :

"That apart, being ex gratia, no right accrues to any sum as such till it is determined and awarded and, in such cases, normally it should not only be in terms of the Guidelines and Policy, in force, as on the date of consideration and actual grant but has to be necessarily with reference to any indications contained in this regard in the Scheme itself. The line of decisions relation to vested rights accrued being protected from any subsequent amendments may not be relevant for such a situation and it would be apposite to advert to the decision of this Court reported in State of Tamil Nadu vs. Hind Stone and Ors. - 1981 (2) SCC

205. That was a case wherein this Court had to consider the claims of lessees for renewal of their leases or for grant of fresh leases under the Tamil Nadu Minor Mineral Concession Rules, 1959. The High Court was of the view that it was not open to the State Government to keep the applications filed for lease or renewal for a long time and then dispose them of on the basis of a rule which had come into force later. This Court, while reversing such view taken by the High Court, held that in the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application, despite the delay, if any, involved although it is desirable to dispose of the applications, expeditiously."

We may also refer to the decision of this Court in Kuldeep 8

Singh v. Govt. of NCT of Delhi [2006 (5) SCC 702] which

considered the question of grant of liquor vend licences.

This Court held that where applications required

processing and verification the policy which should be

applicable is the one which is prevalent on the date of

grant and not the one which was prevalent when the

application was filed. This Court clarified that the

exception to the said rule is where a right had already

accrued or vested in the applicant, before the change of

policy.

10. In this case the employee died in October, 2004, the

application was made only in June, 2005. The application

was not even by the respondent, but by his mother.

Therefore, it was necessary to ascertain whether

respondent really wanted the appointment, whether he

possessed the eligibility, and whether any post was

available. Within two months of the application, the new

scheme came into force and the old scheme was abolished.

The new scheme specifically provided that all pending

applications will be considered under the new scheme.

Therefore it has to be held that the new scheme which came

into force on 4.8.2005 alone will apply even in respect of

pending applications.

11. The respondent relied upon the following observations 9

in State Bank of India v. Jaspal Kaur - 2007 (9) SCC 571

to contend that he was entitled to be considered under the

old scheme which was in force at the time of the

application by his mother:

"Finally in the fact situation of this case, Sri. Sukhbir Inder Singh (late), Record Assistant (Cash & Accounts) on 01.08.1999, in the Dhab Wasti Ram, Amritsar branch, passed away. The respondent, widow of Sri. Sukhbir Inder Singh applied for compassionate appointment in the appellant Bank on 05.02.2000 under the scheme which was formulated in 2005. The High Court also erred in deciding the matter in favour of the respondent applying the scheme formulated on 04.08.2005, when her application was made in 2000. A dispute arising in 2000 cannot be decided on the basis of a scheme that came into place much after the dispute arose, in the present matter in 2005. Therefore, the claim of the respondent that the income of the family of deceased is Rs. 5855/- only, which is less than 40% of the salary last drawn by Late Shri. Sukhbir Inder Singh, in contradiction to the 2005 scheme does not hold water".

The said observations are read out of context by the

respondent. In that case the Bank employee died on

1.8.1999. Application was filed by the widow on 5.2.2000.

The case of the widow was considered twice and the request

for appointment on compassionate grounds was declined by

taking into consideration the financial position/capacity

of the family. The High Court allowed the writ petition

filed by the widow in 2004 on the ground that the terminal

benefits of Rs.4,57,607/- received by the family were not

sufficient for the sustenance of the family. In an appeal 1

by the Bank, it was contended before this Court that in

addition to Rs.4,57,607/- paid as terminal benefits, the

widow was getting Rs.2055/- per month as family pension

and that was not considered by the High Court. During the

hearing before this court, the widow relied upon the new

scheme dated 4.8.2005 and sought additional payment in

terms of the scheme. The above observations were made in

the context of rejecting the widow's request for

additional payment under the 2005 scheme. In fact, this

court allowed the Bank's appeal and dismissed the writ

petition filed by the widow for additional benefits. The

said observations, cannot therefore be of any assistance

to consider the applicability of the old scheme for

compassionate appointment vis-`-vis the new scheme for ex-

gratia payment.

12. The respondent was not entitled to be considered for

compassionate appointment. The High Court was not

justified in quashing the communication dated 31.1.2006 or

in directing reconsideration of the case of the respondent

for compassionate appointment.

13. We therefore allow this appeal in part as follows:

(i) The orders of the learned Single Judge and 1

Division Bench are set aside.

(ii) The respondent and/or his family may file a

fresh application under the new scheme, as

directed by the Bank in its letter dated

31.1.2006.

(iii) The appellant Bank is directed to process such

application under the new scheme, if and when

made, and pay the lump sum ex gratia amount

due in terms of that scheme, to the

beneficiaries, within four months of the

receipt of the application.

____________________J.

(R.V. RAVEENDRAN)

____________________J.

(K. S. RADHAKRISHNAN)

New Delhi;

February 08, 2010.