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.

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