BANK OF BARODA & ORS versus BALJIT SINGH on 21 June 2023

JUDGMENT

This appeal arises out of a judgment and decree passed by theHigh Court of Punjab and Haryana in RSA No.338 of 2011 dated11.12.2015. By the said judgment, the High Court has set aside theGjudgment of the First Appellate Court dated 16.12.2009 passed in C.A.No.75 of 2008 and has restored the judgment of the Trial Court passedin Original Suit No.201 of 2005. Consequently, the relief sought for bythe respondent in the suit, i.e., declaration and mandatory injunction vis-a-vis his appointment in the appellant-Bank on compassionate basis hasbeen granted.H

2. Briefly stated, the facts of the case are that the respondent’sfather who was working in the appellant-Bank, died in harness on16.05.1999. As on that date, the appellant-Bank had a Scheme in placefor appointment of dependents of the deceased employees oncompassionate grounds which was issued on 18.08.1998.

3. It is the case of the respondent herein that on the death of therespondent’s father in harness, his mother made an application forappointment of the respondent on compassionate grounds to the post ofPeon under the 1998 Scheme. The said application for compassionateappointment was filed on 21.02.2000. During the pendency of the saidapplication under consideration, the appellant-Bank announced anotherScheme for appointment of the dependents of deceased employees oncompassionate grounds on 10.03.2004. Be that as it may, four yearssubsequent to the death of his father, another representation on behalfof the Respondent was made to the appellant-Bank on 25.03.2004 inorder to bring to the notice of the Bank the fact that he had completedhis matriculation in March 2004. Subsequently, the Bank considered theapplication of the respondent and on 08.06.2004 rejected the same. Beingaggrieved, the respondent filed the Original Suit seeking the relief ofdeclaration and mandatory injunction against the Bank. In the said suit,the appellant-Bank filed its written statement and after trial, the learnedTrial Judge decreed the suit and directed that the respondent be appointedon compassionate grounds.

4. Being aggrieved by the judgment and decree dated 16.10.2008,the appellant-Bank filed an appeal before the Court of the AdditionalDistrict Judge, which by its judgment dated 16.12.2009 allowed the appealand set aside the decree of the Trial Court. The respondent, thereafter,filed a Regular Second Appeal before the High Court of Punjab andHaryana assailing the judgment of the First Appellate Court. The HighCourt, while considering the Second Appeal formulated two questionsof law but while answering the same in substance, considered thequestions of law together and by the impugned judgment dated 11.12.2015set aside the judgment of the First Appellate Court and restored thejudgment and decree of the Trial Court. Hence, this appeal by theappellant-Bank before this Court.

5. We have heard Ms.Praveena Gautam, learned counsel for theappellant-Bank and Mr.Himanshu Sharma, learned counsel for therespondent and perused the material placed on record.

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A6. Learned counsel for the appellant made a two-fold submissionwhile assailing the judgment of the High Court. In the first instance, shesubmitted that the High Court was not right in answering the secondquestion of law in favour of the respondent without appreciating thefactual aspects of the matter. Elaborating the said contention, she drewour attention to various clauses of the Scheme dated 18.08.1998 whichBhad been issued by the Bank by way of a Circular, to contend that therespondent did not fulfill the criterion regarding financial status of acandidate, within clause (c) of “Important points”, which gives the formulato be applied in order to consider the case of a candidate for appointmenton compassionate basis. In this regard, she drew our attention to theCapplication made by the respondent disclosing the income of his deceasedfather as well as the income of the family. She submitted that havingregard to the true position of the income of the family, the respondent wasnot at all eligible to be considered for appointment on compassionate basis.

7. She further submitted that the first question of law has not at allDbeen considered by the High Court in the context of the eligibility of therespondent. Further, our attention was drawn to clause ‘A’ regarding theeducational qualification of the candidate and it was submitted that therespondent had not completed his matriculation within a period of fouryears from the date of death of his father and hence, was not entitled tobe considered for the appointment on compassionate basis as a clerkEand was over qualified to be appointed as a Peon.

8. In the above backdrop, learned counsel for the appellant drewour attention to certain judgments of this Court, namely, GeneralManager (D&PB) and Others vs. Kunti Tiwary reported in (2004) 7SCC 271, Balbir Kaur and Another vs. Steel Authority of India Ltd.Freported in (2000) 6 SCC 493 and N.C. Santhosh vs. State of Karnatakareported in (2019) 7 SCC 617 which is a judgment of a Three JudgeBench of this Court, to buttress the submission in support of the propositionthat compassionate appointment is an exception to recruitment and thatno vested right is available to a party to seek compassionate appointmentGas a matter of right. She also submitted that in fact, the suit seeking therelief of declaration and mandatory injunction as against the appellant-Bank was not maintainable.

9. Per contra, learned counsel for the respondent supported thejudgment of the High Court which has restored the judgment of the TrialHCourt and had directed the appellant-Bank to consider the case of the respondent on compassionate grounds. He brought to our notice, thefact that as on the date of the respondent’s father’s death i.e., 16.05.1999,the respondent had already passed 8[th] Standard and thereafter, he alsoacquired his matriculation and intimated to the Bank that he had theeligibility to be considered for compassionate appointment. He furthersubmitted that the application which was filed on compassionate basiswas filled up by the Bank itself and the details stated in the said applicationwere not accurate and that the respondent was entitled to be consideredfor an appropriate post in the appellant-Bank.

10. Learned counsel further submitted that the delay inconsideration of the respondent’s application, coupled with the fact thatthe rejection of the application without any reasoning had caused prejudiceto the respondent and that there is no merit in the appeal and, therefore,the same may be dismissed.

11. Having heard the learned counsel for the respective parties,we find that the following points would arise for our consideration: -

(1) Whether the High Court was justified in setting aside thejudgment of the First Appellate Court and restoring the judgmentand decree of the Trial Court while answering the questions oflaw in favour of the respondent and against the Bank?

(2) What order?

12. It is necessary to reiterate that the appointment of a candidateon compassionate basis does not create any vested right and that it isonly when a candidate is covered under all clauses of the Schemeapplicable at the relevant point of time that he/she could be consideredfor compassionate appointment.

13. In Balbir Kaur vs. Steel Authority of India Ltd., (supra) itwas observed that the family benefit scheme assuring monthly paymentto the family of deceased employee on the facts therein was not asubstitute for compassionate appointment by the Steel Authority of India– Respondent in the said case. The said case proceeds on its own facts.The said judgment can be distinguished from the facts of the instantcase as the 1998 Scheme specifically disentitles a candidate forcompassionate appointment benefit on the application of the formula forcalculation of monthly income if the same is not less than 60% of thetotal emoluments which the deceased was drawing at the time of his A

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Adeath. The object is that it is only when a deceased employee’s family isin penury and without any source of livelihood when the employee diedin harness, compassionate appointment can be considered. Sinceappointment on compassionate basis is an exception to the general rulefor appointment by an open invitation, the exception has to be resortedto only when the candidate and his family is in penury so as to provideBimmediate succor on the death of the employee in harness. The samehas been observed in General Manager (D&PB) vs. Kunti Tiwary(supra). In N.C.Santhosh vs. State of Karnataka (supra) a three JudgeBench of this Court reiterated that appointment on compassionate basisis a concession and not a right and the criteria laid down in the Rules andCSchemes applicable must be satisfied by all aspirants. Therefore, thecase for compassionate appointment has to be considered in accordancewith the prevalent Scheme. Similarly, in State of Himachal PradeshVs. Shashi Kumar, (supra), this Court has observed that compassionateappointment being an exception to the general rule, the dependents ofdeceased government employee are made eligible by virtue of the policyDof compassionate appointment and they must fulfil the terms of the policywhich are framed by the States/Employers.

14. It is to be noted that in the instant case, the respondent filed asuit for declaration and mandatory injunction seeking appointment oncompassionate basis which was decreed by the Trial Court and upheldEand affirmed by the High Court. In State of Himachal Pradesh vs.Parkash Chand reported in (2019) 4 SCC 285, it has been categoricallyheld that a direction by a High Court to consider cases for compassionateappointment dehors the terms of the policy is impermissible as it wouldamount to re-writing the terms of the policy. This aspect has beenFoverlooked by the High Court in the instant case. In a similar vein, inIndian Bank vs. Promila reported in (2020) 2 SCC 729, it has beenobserved that eligibility for compassionate appointment must be as perthe applicable scheme and the courts cannot substitute a scheme or addor subtract from the terms thereof in exercise of judicial review. Theaforesaid dicta would also apply to a suit filed seeking the relief ofGcompassionate appointment.

15. In this regard, reference could be made to the judgment ofthis Court in State of Himachal Pradesh vs. Shashi Kumar reported in(2019) 3 SCC 653 wherein at Paragraphs 18-19 the aforesaid termshave been clearly stated.H

16. Therefore, it is necessary to consider the Scheme which isapplicable to the respondent in the instant case. It is not in dispute betweenthe parties that the Scheme dated 18.09.1998 which has been issued byway of a Circular is applicable to the case of the respondent. Under thesaid Scheme, both the educational qualification as well as qualificationvis-a-vis the income of the candidate making an application forcompassionate appointment have been prescribed and they are to beconsidered by the employer. In this context, it would be useful to referthe judgment of the High Court which has raised two questions of lawwhich are as follows:

i) Whether the case of the appellant can be considered forcompassionate employment vis-a-vis the Scheme which wasin vogue at the time when Balbir Singh died or subsequent tothat?

ii) Whether advancement of family pension can be the groundfor non-suiting the case of compassionate employment?

17. While answering the second question, the High Court hasreferred to a judgment of the Rajasthan High Court in Mohd. FarooqBhati vs. S.B.B.J. reported in (2009) 2 SCT 353 which had relied uponthe judgment of this Court in Balbir Kaur (supra) to hold that the objectionwith regard to the family income cannot be really considered as anobjection to deny compassionate appointment. As far as the first questionof law is concerned, the High Court has simply stated that the effectivedate of consideration of the application for compassionate appointmentwould be the date on which the respondent’s father died. The HighCourt has stated that the 1998 Scheme was in force as on the date whenthe respondent’s father died and, therefore, the said Scheme would beapplicable. However, we find that while answering the questions of law,the High Court has erred on both counts.

18. In this regard, we would like to consider the issue regardingthe consideration of the financial position of the respondent vis-a-vis theeligibility to be considered for appointment on compassionate grounds.The relevant clause of the Scheme reads as under:

“b) Dependent of an employee dying in harness can beconsidered for compassionate appointment provided the familyis without means of livelihood and the condition of the family ispenurious.

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c) Calculation formula for income:

Following formula would be followed for arriving at the financialposition or income of the family:

The total of the following amounts received as Terminal Benefitswill form the available resources:

i. Balance of provident fund.

ii. Gratuity.

iii. Additional Retirement Benefits.

iv. Investments made from loan from others.

From the above, following outstanding financial liabilities to bededucted:

i. Housing loan ii. Vehicle loan

iii. Other loans from bank

iv. Loan from others

After arriving at the net amount remaining with the family,interest @11% be applied to arrive at monthly income of thefamily by further taking into consideration:

i. Net salary of dependent family members viz., spouse/son/ daughter/ dependent unmarried brother/dependentunmarried sister.

ii. Pension (monthly)

iii. Income from savings and other investments.

After arriving at the monthly income as above, if the same isless than 60% of the total emoluments (which the deceasedwas drawing at the time of death) less Tax @ 15% (if theincome is more than Rs.10,000/- p.m.) the case forcompassionate appointment can be considered.”

19. While applying the said formula to the case at hand, it isnoted from the details submitted with regard to the deceased employeeand his dependents that the income of the widow of the deceased wasRs.6,845/- per month (basic pay of Rs.4140/- per month) as she was

employed in the Health Department of the State Government, and herfamily pension was Rs.3,478/- per month. Thus, the gross total incomeof the family per month comes to Rs.10,323/- and the net income isRs.7,618/- per month. The said figure has been taken into considerationwhile applying the formula referred to above and after applying the saidformula to the case of the respondent, we find that the monthly incomeso arrived at is not less than 60% of the total emoluments and thus, thecase of the respondent cannot be considered on compassionate basis onthat score. The total emoluments of the deceased father of the respondentwere Rs.3,210/- per month at the time of his death which is lesser thanthe total net income of the deceased’s family. Thus, the total income ofthe family is not less than 60% of the total emoluments which the deceasedwas drawing at the time of his death as per the Scheme underconsideration. In that view of the matter, the High Court ought to havetaken into consideration the factual details rather than just referring tothe judgments in answering the questions of law.

20. As far as the first question of law is concerned, it has beenclarified during the course of arguments by the learned counsel for therespondent that the respondent was eligible to be considered for the postof Peon as he had passed 8[th] standard during the life time of his fatherand thus, was eligible to be considered to the said post as on the date onwhich he made the said application. We do not think that the said argumentwould be of assistance to the respondent inasmuch as the respondent isnot qualified or is eligible to be considered for said post on compassionatebasis having regard to the family income of the respondent.

21. In the circumstances, we are of the view that the High Courtwas not right in answering the questions of law in favour of the respondentand thereby, setting aside the judgment of the First Appellate Court andrestoring the judgment of the Trial Court.

22. In the result, the appeal is allowed and the judgment of theHigh Court is set aside and the suit of the respondent is dismissed.

23. The Parties to bear their respective costs.

24. Pending application(s), if any, shall stand disposed of.

Divya Pandey

Appeal allowed.

(Assisted by : Roopanshi Virang, LCRA)

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