BANK OF BARODA & ORS. VERSUS BALJIT SINGH

 BANK OF BARODA & ORS.  VERSUS BALJIT SINGH Case

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 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S).624/2017

BANK OF BARODA & ORS. Appellant(s)

VERSUS

BALJIT SINGH Respondent(s)

J U D G M E N T

This appeal arises out of a judgment and decree passed

by the High Court of Punjab and Haryana in RSA No.338 of

2011 dated 11.12.2015. By the said judgment, the High Court

has set aside the judgment 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 passed in Original

Suit No.201 of 2005. Consequently, the relief sought for by

the respondent in the suit, i.e., declaration and mandatory

injunction vis-a-vis his appointment in the appellant-Bank

on compassionate basis has been granted.

2. Briefly stated, the facts of the case are that the

respondent’s father who was working in the appellant-Bank,

died in harness on 16.05.1999. As on that date, the

appellant-Bank had a Scheme in place for appointment of

dependents of the deceased employees on compassionate

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grounds which was issued on 18.08.1998.

3. It is the case of the respondent herein that on the

death of the respondent’s father in harness, his mother

made an application for appointment of the respondent on

compassionate grounds to the post of Peon under the 1998

Scheme. The said application for compassionate appointment

was filed on 21.02.2000. During the pendency of the said

application under consideration, the appellant-Bank

announced another Scheme for appointment of the dependents

of deceased employees on compassionate grounds on

10.03.2004. Be that as it may, four years subsequent to the

death of his father, another representation on behalf of

the Respondent was made to the appellant-Bank on 25.03.2004

in order to bring to the notice of the Bank the fact that

he had completed his matriculation in March 2004.

Subsequently, the Bank considered the application of the

respondent and on 08.06.2004 rejected the same. Being

aggrieved, the respondent filed the Original Suit seeking

the relief of declaration and mandatory injunction against

the Bank. In the said suit, the appellant-Bank filed its

written statement and after trial, the learned Trial Judge

decreed the suit and directed that the respondent be

appointed on compassionate grounds.

4. Being aggrieved by the judgment and decree dated

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16.10.2008, the appellant-Bank filed an appeal before the

Court of the Additional District Judge, which by its

judgment dated 16.12.2009 allowed the appeal and set aside

the decree of the Trial Court. The respondent, thereafter,

filed a Regular Second Appeal before the High Court of

Punjab and Haryana assailing the judgment of the First

Appellate Court. The High Court, while considering the

Second Appeal formulated two questions of law but while

answering the same in substance, considered the questions

of law together and by the impugned judgment dated

11.12.2015 set aside the judgment of the First Appellate

Court and restored the judgment and decree of the Trial

Court. Hence, this appeal by the appellant-Bank before this

Court.

5. We have heard Ms.Praveena Gautam, learned counsel for

the appellant-Bank and Mr.Himanshu Sharma, learned counsel

for the respondent and perused the material placed on

record.

6. Learned counsel for the appellant made a two-fold

submission while assailing the judgment of the High Court.

In the first instance, she submitted that the High Court

was not right in answering the second question of law in

favour of the respondent without appreciating the factual

aspects of the matter. Elaborating the said contention,

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she drew our attention to various clauses of the Scheme

dated 18.08.1998 which had been issued by the Bank by way

of a Circular, to contend that the respondent did not

fulfill the criterion regarding financial status of a

candidate, within clause (c) of “Important points”, which

gives the formula to be applied in order to consider the

case of a candidate for appointment on compassionate basis.

In this regard, she drew our attention to the application

made by the respondent disclosing the income of his

deceased father as well as the income of the family. She

submitted that having regard to the true position of the

income of the family, the respondent was not at all

eligible to be considered for appointment on compassionate

basis.

7. She further submitted that the first question of law

has not at all been considered by the High Court in the

context of the eligibility of the respondent. Further, our

attention was drawn to clause ‘A’ regarding the educational

qualification of the candidate and it was submitted that

the respondent had not completed his matriculation within a

period of four years from the date of death of his father

and hence, was not entitled to be considered for the

appointment on compassionate basis as a clerk and was over

qualified to be appointed as a Peon.

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8. In the above backdrop, learned counsel for the

appellant drew our attention to certain judgments of this

Court, namely, General Manager (D&PB) and Others vs. Kunti

Tiwary reported in (2004) 7 SCC 271, Balbir Kaur and

Another vs. Steel Authority of India Ltd. reported in

(2000) 6 SCC 493 and N.C. Santhosh vs. State of Karnataka

reported in (2019) 7 SCC 617 which is a judgment of a Three

Judge Bench of this Court, to buttress the submission in

support of the proposition that compassionate appointment

is an exception to recruitment and that no vested right is

available to a party to seek compassionate appointment as a

matter of right. She also submitted that in fact, the suit

seeking the relief of declaration and mandatory injunction

as against the appellant-Bank was not maintainable.

9. Per contra, learned counsel for the respondent

supported the judgment of the High Court which has restored

the judgment of the Trial Court and had directed the

appellant-Bank to consider the case of the respondent on

compassionate grounds. He brought to our notice, the fact

that as on the date of the respondent’s father’s death

i.e., 16.05.1999, the respondent had already passed 8th

Standard and thereafter, he also acquired his matriculation

and intimated to the Bank that he had the eligibility to be

considered for compassionate appointment. He further

submitted that the application which was filed on

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compassionate basis was filled up by the Bank itself and

the details stated in the said application were not

accurate and that the respondent was entitled to be

considered for an appropriate post in the appellant-Bank.

10. Learned counsel further submitted that the delay in

consideration of the respondent’s application, coupled with

the fact that the rejection of the application without any

reasoning had caused prejudice to 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 the judgment of the First Appellate Court and

restoring the judgment and decree of the Trial Court

while answering the questions of law in favour of the

respondent and against the Bank?

 (2) What order?

12. It is necessary to reiterate that the appointment of

a candidate on compassionate basis does not create any

vested right and that it is only when a candidate is

covered under all clauses of the Scheme applicable at the

relevant point of time that he/she could be considered for

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compassionate appointment.

13. In Balbir Kaur vs. Steel Authority of India Ltd.,

(supra)it was observed that the family benefit scheme

assuring monthly payment to the family of deceased employee

on the facts therein was not a substitute 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 instant case as the 1998 Scheme specifically

disentitles a candidate for compassionate appointment

benefit on the application of the formula for calculation

of monthly income if the same is less than 60% of the total

emoluments which the deceased was drawing at the time of

his death. The object is that it is only when a deceased

employee’s family is in penury and without any source of

livelihood when the employee died in harness, compassionate

appointment can be considered. Since appointment on

compassionate basis is an exception to the general rule for

appointment by an open invitation, the exception has to be

resorted to only when the candidate and his family is in

penury so as to provide immediate succor on the death of

the employee in harness. The same has been observed in

General Manager(D&PB) vs. Kunti Tiwary (supra). In

N.C.Santhosh vs. State of Karnataka(supra) a three Judge

Bench of this Court reiterated that appointment on

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compassionate basis is a concession and not a right and the

criteria laid down in the Rules and Schemes applicable must

be satisfied by all aspirants. Therefore, the case for

compassionate appointment has to be considered in

accordance with the prevalent Scheme. Similarly, in State

of Himachal Pradesh Vs. Shashi Kumar, (supra), this Court

has observed that compassionate appointment being an

exception to the general rule, the dependents of deceased

government employee are made eligible by virtue of the

policy of compassionate appointment and they must fulfil

the terms of the policy which are framed by the

States/Employers.

14. It is to be noted that in the instant case, the

respondent filed a suit for declaration and mandatory

injunction seeking appointment on compassionate basis which

was decreed by the Trial Court and upheld and affirmed by

the High Court. In State of Himachal Pradesh vs. Parkash

Chand reported in (2019) 4 SCC 285, it has been

categorically held that a direction by a High Court to

consider cases for compassionate appointment dehors the

terms of the policy is impermissible as it would amount to

re-writing the terms of the policy. This aspect has been

overlooked by the High Court in the instant case. In a

similar vein, in Indian Bank vs. Promila reported in (2020)

2 SCC 729, it has been observed that eligibility for

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compassionate appointment must be as per the applicable

scheme and the courts cannot substitute a scheme or add or

subtract from the terms thereof in exercise of judicial

review. The aforesaid dicta would also apply to a suit

filed seeking the relief of compassionate appointment.

15. In this regard, reference could be made to the

judgment of this Court in State of Himachal Pradesh vs.

Shashi Kumar reported in (2019) 3 SCC 653 wherein at

Paragraphs 18-19 the aforesaid terms have been clearly

stated.

16. Therefore, it is necessary to consider the Scheme

which is applicable to the respondent in the instant case.

It is not in dispute between the parties that the Scheme

dated 18.09.1998 which has been issued by way of a Circular

is applicable to the case of the respondent. Under the

said Scheme, both the educational qualification as well as

qualification vis-a-vis the income of the candidate making

an application for compassionate appointment have been

prescribed and they are to be considered by the employer.

In this context, it would be useful to refer the judgment

of the High Court which has raised two questions of law

which are as follows:

i) Whether the case of the appellant can be considered

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for compassionate employment vis-a-vis the Scheme

which was in vogue at the time when Balbir Singh died

or subsequent to that?

ii) Whether advancement of family pension can be the

ground for non-suiting the case of compassionate

employment?

17. While answering the second question, the High Court

has referred to a judgment of the Rajasthan High Court in

Mohd. Farooq Bhati vs. S.B.B.J. reported in (2009) 2 SCT

353 which had relied upon the judgment of this Court in

Balbir Kaur (supra) to hold that the objection with regard

to the family income cannot be really considered as an

objection to deny compassionate appointment. As far as the

first question of law is concerned, the High Court has

simply stated that the effective date of consideration of

the application for compassionate appointment would be the

date on which the respondent’s father died. The High Court

has stated that the 1998 Scheme was in force as on the date

when the respondent’s father died and, therefore, the said

Scheme would be applicable. 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

regarding the consideration of the financial position of

the respondent vis-a-vis the eligibility to be considered

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for appointment on compassionate grounds. The relevant

clause of the Scheme reads as under:

“b) Dependent of an employee dying in harness

can be considered for compassionate appointment

provided the family is without means of livelihood

and the condition of the family is penurious.

c) Calculation formula for income:

Following formula would be followed for arriving at

the financial position or income of the

family:

The total of the following amounts received as

Terminal Benefits will 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 be deducted:

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 the family by further taking into

consideration:

i. Net salary of dependent family members

viz., spouse/ son/ daughter/ dependent

unmarried brother/dependent unmarried sister.

ii. Pension (monthly)

iii. Income from savings and other investments.

After arriving at the monthly income as above, if

the same is less than 60% of the total emoluments

(which the deceased was drawing at the time of death)

less Tax @ 15% (if the income is more than Rs.10,000/-

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p.m.) the case for compassionate appointment can be

considered.”

19. While applying the said formula to the case at hand,

it is noted from the details submitted with regard to the

deceased employee and his dependents that the income of the

widow of the deceased was Rs.6,845/- per month (basic pay

of Rs.4140/- per month) as she was employed in the Health

Department of the State Government, and her family pension

was Rs.3,478/- per month. Thus, the gross total income of

the family per month comes to Rs.10,323/- and the net

income is Rs.7,618/- per month. The said figure has been

taken into consideration while applying the formula

referred to above and after applying the said formula to

the case of the respondent, we find that the monthly income

so arrived at is not less than 60% of the total emoluments

and thus, the case of the respondent cannot be considered

on compassionate basis on that score. The total emoluments

of the deceased father of the respondent were Rs.3,210/-

per month at the time of his death which is lesser than the

total net income of the deceased’s family. Thus, the total

income of the family is not less than 60% of the total

emoluments which the deceased was drawing at the time of

his death as per the Scheme under consideration. In that

view of the matter, the High Court ought to have taken into

consideration the factual details rather than just

referring to the judgments in answering the questions of

law.

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20. As far as the first question of law is concerned, it

has been clarified during the course of arguments by the

learned counsel for the respondent that the respondent was

eligible to be considered for the post of Peon as he had

passed 8th standard during the life time of his father and

thus, was eligible to be considered to the said post as on

the date on which he made the said application. We do not

think that the said argument would be of assistance to the

respondent inasmuch as the respondent is not qualified or

is eligible to be considered for said post on compassionate

basis having regard to the family income of the respondent.

21. In the circumstances, we are of the view that the

High Court was not right in answering the questions of law

in favour of the respondent and thereby, setting aside the

judgment of the First Appellate Court and restoring the

judgment of the Trial Court.

22. In the result, the appeal is allowed and the

judgment of the High 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

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of.

 ……………………………………………………J.

 (B.V. NAGARATHNA)

 …………………………………………………J.

 (MANOJ MISRA)

NEW DELHI;

JUNE 21, 2023.