STATE BANK OF INDIA & ORS. versus SHEO SHANKAR TEWARI on 8 February 2019

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SUPREME COURT REPORTS

[2019] 3 S.C.R.

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STATE BANK OF INDIA & ORS.

v.

SHEO SHANKAR TEWARI

(Special Leave Petition (Civil) No. 30335 of 2017)

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FEBRUARY 08, 2019

[UDAY UMESH LALIT AND INDU MALHOTRA, JJ.]

Service Law – Compassionate appointment – Substitution oforiginal scheme under which appointment on compassionategrounds could be made, by a scheme under which only ex gratiaCpayment to be made over to the dependents – The decisions ofSupreme Court, relied upon by the petitioner proceeded on thepremise that there was no vested right to have the matter consideredunder the former scheme and the governing scheme would be onewhich was in force when the applications came up for considerationD– The decision relied upon by the respondent proceeded on adifferent principle and stipulated that the governing scheme wouldbe the former scheme and any subsequent that came into force afterthe claim was raised would not be applicable – The principlesemanating from these two lines of decisions were not consistentand did not reconcile – Therefore, matter required consideration byEa larger Bench – The Registry directed to place the papers of thiscase before the Chief Justice of India for constituting a Bench ofappropriate strength to dispose of the petition – Reference to largerbench.

State Bank of India and another v. Raj Kumar (2010)11 SCC 661; MGB Gramin Bank v. Chakrawarti Singh(2014) 13 SCC 583 : [2013] 10 SCR 1; Canara Bankand another v. M. Mahesh Kumar (2015) 7 SCC 412 :[2015] 9 SCR 724; SBI v. Jaspal Kaur case (2007) 9SCC 571 : [2007] 2 SCR 101 – referred to.

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Case Law Reference

(2010) 11 SCC 661 referred toPara 4[2013] 10 SCR 1 referred toPara 5[2015] 9 SCR 724 referred toPara 6[2007] 2 SCR 101 referred toPara 8718

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CIVIL APPELLATE JURISDICTION: Special Leave Petition(Civil) No. 30335 of 2017.

From the Judgment and Order dated 28.08.2017 of the High Courtof Judicature at Allahabad, Bench at Lucknow in Special Appeal No.363 of 2017.

Sanjay Kapur, Bharath Gangadharan, Ms. Megha Karnwal, Ms.Mansi Kapur, Advs. for the Petitioners.

Satish Pandey, Sanjay Kumar Visen, Santosh Kumar Tripathi,Rajesh Maurya, Ms. Ritu Rastogi, Advs. for the Respondent.

The Order of the Court was passed by

UDAY UMESH LALIT, J. 1. The father of the respondentwas working with the petitioner-bank and while in service died on11.11.2004. A request was made for appointment on compassionategrounds by the respondent on 03.03.2005. As on that date, compassionateappointment could be granted to the dependents of employees dying inharness. However, instructions were issued by the Government of India,Ministry of Finance on 14.07.2004 to frame an appropriate scheme forpayment of monetary assistance in lieu of compassionate appointment.Vide its communication dated 31.07.2004 the IBA[1] had advised the banksto frame their own schemes based on said model.

2. Before the application of the respondent could be considered,the petitioner-bank formally approved a scheme for payment of ex-gratialumpsum amount in lieu of compassionate appointment vide its schemecirculated on 04.08.2005. The relevant clause namely Clause 15(vi)provided:- “With effect from the date the “SBI Scheme for payment of ex-gratia lumpsum amount” comes into force the bank’s scheme ofcompassionate appointments shall be deemed abolished/withdrawnand no request for compassionate appointment shall be entertainedor considered by the bank under any circumstance.”

3. According to the petitioner-bank, the application of therespondent for compassionate appointment could not therefore beconsidered. The challenge to the action on part of the bank by way ofWrit Petition was accepted by the Single Judge and the Division Benchof the High Court which decisions are presently in appeal.

1 Indian Banks’ Association

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A4. The learned counsel for the petitioner-bank relied upon thedecision of this Court in State Bank of India and another vs. RajKumar[2] and particularly paragraphs 2, 8, 12 and 13 which are to thefollowing effect:- “2. The respondent’s father employed as a Messenger in theBappellant Bank, died on 1-10-2004. The respondent’s mother madeapplications dated 6-6-2005 and 14-6-2005 requesting for hisappointment on compassionate grounds. When the applicationswere being processed and verified, the CompassionateAppointment Scheme was substituted by the “SBI Scheme forpayment of ex gratia lump sum amount” with effect from 4-8-C2005. The new Scheme abolished the old Scheme forcompassionate appointments and instead provided for paymentof an ex gratia lump sum amount as per its terms.

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8. It is now well settled that appointment on compassionate groundsDis not a source of recruitment. On the other hand it is an exceptionto the general rule that recruitment to public services should be onthe basis of merit, by an open invitation providing equal opportunityto all eligible persons to participate in the selection process. Thedependants of employees, who die in harness, do not have anyspecial claim or right to employment, except by way of theEconcession that may be extended by the employer under the rulesor by a separate scheme, to enable the family of the deceased toget over the sudden financial crisis. The claim for compassionateappointment is therefore traceable only to the scheme framed bythe employer for such employment and there is no right whatsoeverFoutside such scheme. An appointment under the scheme can bemade 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 schemewill also cease to exist, unless saved. The mere fact that anapplication was made when the scheme was in force, will not byGitself create a right in favour of the applicant.

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12. Obviously, therefore, there can be no immediate or automaticappointment merely on an application. Several circumstances2 (2010) 11 SCC 661H

having a bearing on eligibility, and financial condition, up to thedate of consideration may have to be taken into account. As noneof the applicants under the scheme has a vested right, the schemethat is in force when the application is actually considered, andnot the scheme that was in force earlier when the application wasmade, will be applicable.

13. Further, where the earlier scheme is abolished and the newscheme which replaces it specifically provides that all pendingapplications will be considered only in terms of the new scheme,then the new scheme alone will apply. As compassionateappointment is a concession and not a right, the employer maywind up the scheme or modify the scheme at any time dependingupon its policies, financial capacity and availability of posts.”

5. He also relied upon the decision of this Court in MGB GraminBank vs. Chakrawarti Singh[3]. Paragraphs 2, 15 and 16 of said decisionare as under:

“2. The facts and circumstances giving rise to this appeal arethat: the father of the respondent who was working as a Class IIIemployee with the appellant Bank died on 19-4-2006 while inharness. The respondent applied for compassionate appointmenton 12-5-2006. During the pendency of the application filed by therespondent, a new scheme dated 12-6-2006 came into force witheffect from 6-10-2006. Clause 14 thereof provides that allapplications pending on the date of commencement of the schemeshall be considered for grant of ex gratia payment to the familyinstead of compassionate appointment.

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15. The Court considered various aspects of service jurisprudenceand came to the conclusion that as the appointment oncompassionate ground may not be claimed as a matter of rightnor an applicant becomes entitled automatically for appointment,rather it depends on various other circumstances i.e. eligibilityand financial conditions of the family, etc. the application has tobe considered in accordance with the scheme. In case the schemedoes not create any legal right, a candidate cannot claim that hiscase is tobeconsidered as per the scheme existing on the date 3 (2014) 13 SCC 583

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the cause of action had arisen i.e. death of the incumbent on thepost. In SBI vs. Raj Kumar[2], this Court held that in such a situation,the case under the new scheme has to be considered.

16. In view of the above position, the reasoning given by thelearned Single Judge[4] as well as by the Division Bench[5] is notBsustainable in the eye of the law. The appeal is allowed and theimpugned judgments[4 & 5] of the High Court are set aside.”

6. On the other hand, reliance was placed by the learned counselappearing for the respondent on the decision in Canara Bank andanother vs. M. Mahesh Kumar[6]. Paragraphs 11, 12, 17 and 22 of thisCdecision are:- “11. During the pendency of the matter before the Division Bench,Indian Banks Association (for short “IBA”) formulated a schemebased on the guidelines issued by the Government of India. Asper the said Scheme, the banks have scrapped the scheme ofDcompassionate appointment and introduced the new scheme ofex gratia payment in lieu of compassionate appointment by HOCircular No. 35 of 2005 dated 14-2-2005. According to appellantBank, as on date of consideration of the application forcompassionate appointment, there was no policy to providecompassionate appointment under “Dying in Harness Scheme”.EIt is therefore the contention of the Bank that the new 2005Scheme applies to all pending applications for appointment oncompassionate ground, the respondent’s case could not beconsidered and as per the new Scheme, they are only entitled toex gratia payment in lieu of compassionate appointment.

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12. The main question falling for consideration is whether theScheme passed in 2005 providing for ex gratia payment or theScheme then in vogue in 1993 providing for compassionateappointment is applicable to the respondent.

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17. Applying these principles to the case in hand, as discussedearlier, the respondent’s father died on 10-10-1998 while he was 4 Chakrawarti Singh vs. Marwar Ganganagar Bikaner Gramin Bank, Civil Writ PetitionNo.7869 of 2008, decided on 27.7.2009 (Raj.)

5 MGB Gramin Bank vs. Chakrawarti Singh, Civil Special Appeal (W)No.798 of2009, decided on 27.1.2010 (Raj.)H 6 (2015) 7 SCC 412

serving as a clerk in the appellant Bank and the respondent appliedtimely for compassionate appointment as per the scheme “Dyingin Harness Scheme” dated 8-5-1993 which was in force at thattime. The appellant Bank rejected the respondent’s claim on 30-6-1999 recording that there are no indigent circumstances forproviding employment to the respondent. Again on 7-11-2001, theappellant Bank sought for particulars in connection with the issueof the respondent’s employment. In the light of the principles laiddown in the above decisions, the cause of action to be consideredfor compassionate appointment arose when Circular No. 154 of1993 dated 8-5-1993 was in force. Thus, as per the judgmentreferred in SBI vs. Jaspal Kaur case[7], the claim cannot be decidedas per 2005 Scheme providing for ex gratia payment. The Circulardated 14-2-2005 being an administrative or executive order cannothave retrospective effect so as to take away the right accrued tothe respondent as per Circular of 1993.

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22. Considering the scope of the scheme “Dying in HarnessScheme 1993” then in force and the facts and circumstances ofthe case, the High Court rightly directed the appellant Bank toreconsider the claim of the respondent for compassionateappointment in accordance with law and as per the Scheme (1993)then in existence. We do not find any reason warrantinginterference.”

7. In these decisions, the original scheme under which appointmenton compassionate grounds could be made, was substituted by one underwhich only ex gratia payment would be made over to the dependants.The decisions relied upon by the petitioner proceed on the premise thatthere is no vested right to have the matter considered under the formerscheme and the governing scheme would be one which was in forcewhen the applications came up for consideration. On the other hand,the decision relied upon by the respondent proceeds on a differentprinciple and stipulates that the governing scheme would be the formerscheme and any subsequent that came into force after the claim wasraised would not be applicable. The decision of this Court in CanaraBank[6]did notice the earlier two decisions in State Bank of India[2 ]andMGB Gramin Bank[ 3].

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724SUPREME COURT REPORTS

A8. All the aforesaid three decisions as well as one in Jaspal Kaur[7]were rendered by Benches of two Hon’ble Judges of this Court.

9. The principles emanating from these two lines of decisions, inour considered view are not consistent and do not reconcile. The mattertherefore requires consideration by a larger Bench of at least threeBHon’ble Judges of this Court.

10. We, therefore, request the Registry to place the papers of thiscase before the Hon’ble the Chief Justice of India for constituting aBench of appropriate strength to dispose of the present petition.

11. Ordered accordingly.

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Devika Gujral

Matter referred to larger Bench.

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