Allahabad High Court
Bechan Giri vs Union Of India And 4 Others on 17 July, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:144474 Court No. - 33 Reserved A.F.R. Case :- WRIT - A No. - 9704 of 2023 Petitioner :- Bechan Giri Respondent :- Union Of India And 4 Others Counsel for Petitioner :- Seemant Singh Counsel for Respondent :- A.S.G.I.,Salilendu Kumar Upadhyay Hon'ble J.J. Munir,J.
1. This writ petition is directed against an order dated 20.01.2020, declining an application by the petitioner's mother seeking compassionate appointment for him on ground of his father's death in harness.
2. The facts giving rise to this petition are that the petitioner's father was employed as an office assistant in Baroda U.P. Bank, earlier known as the Purvanchal Bank. The said bank shall hereinafter be called 'the Bank'. The petitioner's father was last posted at Branch Kadamtar, District Ballia. He died in harness on 8th of October, 2018. The petitioner's mother moved an application seeking compassionate appointment for him, the petitioner being the eldest son of the deceased. The application was made to the General Manager of the Bank on 18.04.2019 accompanied by the deceased employee's death certificate dated 02.11.2018. The Assistant General Manager of the Bank by the order impugned dated 20.01.2020 communicated the Bank's decision declining to consider the petitioner's case on ground that the dying in harness scheme became effective in the Bank w.e.f. 15th March, 2019, whereas the petitioner's father had expired prior to 15th March, 2019.
3. The petitioner has also challenged a circular dated 28.03.2019 issued by the Head Office of the Bank, explaining the operation of the scheme for compassionate appointment in terms that the provision in the scheme that claims, 'in case of death occurring five years earlier can be considered', does not mean that the scheme would have retrospective operation. In other words, the circular issued by the Head Office impugned, clarifies that in cases of death of employees in harness that have happened before the scheme was enforced, the right to a consideration for compassionate appointment is not there.
4. Heard Mr. Seemant Singh, learned Counsel for the petitioner, Mr. Ashok Khare, learned Senior Advocate assisted by Mr. Gyan Prakash Srivastava, learned Advocate appearing on behalf of respondent Nos.4 and 5 and Mr. Salilendu Kumar Upadhyay, learned Counsel appearing on behalf of respondent Nos.1 and 2.
5. Mr. Seemant Singh, learned Counsel for the petitioner submits that the circular dated 28.03.2019 issued by the Head Office of the Bank interpreting the dying in harness scheme to be prospective in operation is flawed and defeats the mandate of the scheme for compassionate appointment originally framed and adopted by the Bank. The scheme for compassionate appointment in Public Sector Banks, as it is called, was notified by the Ministry of Finance w.e.f. 05.08.2014. Clause 8 of the Scheme reads:
"8.1. Application for employment under the Scheme from eligible dependent should normally be considered upto five years from the date of death or retirement on medical grounds and decision to be taken on merit in each case.
8.2. However, Bank can consider request for compassionate appointment even when the death or retirement on medical grounds of the employee took place long back, even five years ago. While considering such belated requests, it should, however, be kept in view that the concept of compassionate appointment is largely related to the need for immediate assistance to the family of the employee in order to relieve it from economic distress. The very fact that the family has been able to manage somehow all these years should normally be taken as adequate proof that the family had some dependable means of subsistence. Therefore, examination of such cases would call for a great deal of circumspection. The decision to make appointment on compassionate grounds in such cases may, therefore, be taken only at the Board level."
6. Mr. Seemant Singh, learned Counsel for the petitioner submits that Clause 8.1 of the Scheme clearly lays down that the claim to compassionate appointment by a dependent of a deceased employee can normally be considered upto five years from the date of death. According to him, the scheme is beneficial in nature and must be construed to apply retrospectively to those cases also where death occurred before the scheme was enforced in the Bank but within five years of the death of the employee, entitling his dependent under it.
7. In support of his contention, Mr. Seemant Singh has placed reliance upon a Bench decision of the Calcutta High Court in Chief Manager (HR) Bangiya Gramin Vikash Bank and others v. Union of India and another, 2022 SCC OnLine Cal 759, which is strikingly similar on facts and has interpreted the provisions of the same scheme as the one here notified by the Ministry of Finance and adopted by the Bank in that case, as is the case here. In the said decision, it has been held that notwithstanding the death of the employee before the date of enforcement of the scheme in the bank, his dependent is entitled to a consideration of his case for compassionate appointment, if the claim is laid within five years of the date of death of the employee.
8. Learned Counsel for the petitioner has further placed reliance on a decision of the Patna High Court in Central Bank of India v. Urmila Devi, 2017 LabIC 3646, which also holds that the scheme here applies to cases of dependents of those employees, who died before the scheme came into force, but within five years of death the claim has been made.
9. Another decision, Mr. Seemant Singh has called in aid, is that of the Rajasthan High Court in Gigna Devi and another v. Union of India through Secretary Ministry of Finance and others, 2022 SCC OnLine Raj 2929. In this case also, it was held that the dependent of an employee, who had died prior to adoption of the scheme by the bank, would be entitled to compassionate appointment as he had applied within five years of the employee's death in harness. The scheme was held to have retrospective operation. Mr. Seemant Singh has also placed reliance upon an unreported decision of this Court in Smt. Manjeet Kaur v. State of U.P. and another, WRIT - A No.2615 of 2023, decided on 05.04.2023. The attention of the Court has been invited to the following remarks of Vivek Chaudhary, J. in Smt. Manjeet Kaur (supra):
"A bare perusal of the said clause shows that application can be moved within a period of five years from the date of death. There is no dispute that the death has taken place before coming into force the said scheme. Clause 8.2 specifically says that application can be filed within five years of death. Thus even when the death has taken place earlier such cases shall also be considered. There is no bar in this regard in the scheme.
In the present case, the death has taken place hardly a year before the scheme came into force, hence there is no dispute that the application is made within a period of five years.
In view thereof, the impugned order dated 07.12.2021, cannot stand and is set aside."
10. Mr. Ashok Khare, learned Senior Advocate appearing for the Bank in the company of Mr. Salilendu Kumar Upadhyay, learned Counsel for the Government of India, has submitted that the interpretation placed on Clauses 8.1 and 8.2 of the Scheme, on behalf of the petitioner, is absolutely flawed. Mr. Khare submits that the right to be considered for compassionate appointment is not an inherent right, but flows from the Scheme. The learned Senior Advocate submits that there would be no cause of action accruing to the dependent of an employee dying in harness if on the date of his death, there is no Scheme for compassionate appointment in force. It is urged that the five year period of limitation for the dependent of an employee dying in harness referred to in Clauses 8.1 and 8.2 postulates an existing scheme on the date of death. It has no application to a situation where on the date of death of the employee, the Scheme is not in force at all in the Bank establishment. Mr. Khare says that if after enforcement of the Scheme in the Bank, an employee dies in harness, the five year period of limitation giving two different kinds of rights under Clauses 8.1 and 8.2 would arise, but not where on the date of death the Scheme was not at all in force in the Bank.
11. In support of his contention, Mr. Khare has placed reliance upon a very recent decision of the Supreme Court in State of Madhya Pradhesh and others v. Ashish Awasthi, (2022) 2 SCC 157. Mr. Khare has further placed reliance upon a decision of this Court in Mukesh Kumar v. Union of India and others, 2019 (12) ADJ 429 and an unreported decision following the principle in Mukesh Kumar (supra) in Moti Lal v. Union of India and others, WRIT - A No. 6628 of 2020, decided on 02.09.2021.
12. The moot question involved in this case is: Whether the right of a dependent of an employee dying in harness is to be governed by the Scheme or Rules in force in the employer's establishment on the date of the employee's death or on the date that the dependant's application is moved for consideration?
13. The right to be considered for compassion appointment for one is not a right in the sense generally understood in the law. It is a kind of a concession extended to the dependents of a deceased employee, who dies in harness leaving his family behind in such financial distress that may not be overcome by a one time payment of terminal benefits or a modest family pension. It is a bi-product of the State's welfare function provided in State establishments, where the State is the employer or an establishment that is in some way a State instrumentality or a face of the State. The purpose is to save the deceased employee's family from plunging into an economic crisis by providing them a kind of stable support that may enable the surviving family to tide over the crisis that the sudden loss of the breadwinner brings. Therefore, by now, it is more or less settled that a claim for compassionate appointment is not to be granted by a blanket formula. Many factors relating to the deceased's family, that is left behind, have to be evaluated before compassionate appointment is granted. It is often and rightly said that compassionate appointment is not a mode of recruitment to public service. Apart from the funds that the family members of the deceased receive upon his demise as terminal benefits, the ages of the dependent children, their education and future needs, all may require evaluation before a claim for compassionate appointment is accepted under the scheme or the rules applicable. It is in this sense that it is not a kind of vested right that the dependent of a deceased employee enjoys in the event of the employee dying in harness. The other very relevant factor to answer the question under consideration is that the right to a consideration for compassionate appointment is not an inherent right. Unless there are statutory rules or a scheme in force in the employer's establishment providing for compassionate appointment, no dependent of a deceased employee, who passes away in harness, can stake his claim.
14. It is in the background of the aforesaid principles, and, more than that, the nature of compassionate appointment itself that the question involved here may be answered.
15. The question indeed has led to much division of judicial opinion in the context of the scheme here, in particular. It is necessary to notice those decisions before any fruitful conclusion can be reached. In Bangiya Gramin Vikash Bank (supra), which is a Bench decision of the Calcutta High Court, the facts were that the writ petitioner's father died in harness on 28th June, 2017. He was a messenger, a Group-D employee. The petitioner's claim for compassionate appointment was rejected by a communication dated 16th November, 2019 on ground that his father had died before the scheme came into force in the bank w.e.f. 6th March, 2019. The writ petitioner applied for consideration on 8th April, 2019, i.e., after the scheme had been enforced w.e.f. 6th March, 2019. But, his claim did not find favour with the bank, as already said. The learned Single Judge allowed the writ petition and the bank appealed to the Division Bench. Speaking for the Division Bench, Subrata Talukdar, J. held:
"12. Having heard the parties and considering the materials placed, this Court finds as follows:
A) That the writ petitioner applied on the 8th of April 2019 by which time the Scheme had come into force on the 6th of March 2019. With reference to CA 8564 of 2015 (supra), which is an authority relied upon by the appellant, it is noticed that reference therein has been made to CA 2798 of 2010, reported in (2020) 2 SCC 729, wherein Paragraph 23, as pointed out by Learned Counsel for the appellant, reads as follows:
"23. We had the occasion of examining the issue of compassion appointment in a recent judgment in Indian Bank v. Promila 4 We may usefully refer to paras 3, 4, & 5 as under:"3. There has been some confusion as to the scheme applicable and, thus, this Court directed the scheme prevalent, on the date of the death, to be placed before this Court for consideration, as the High Court appears to have dealt with a scheme which was of a subsequent date. The need for this also arose on account of the legal position being settled by the judgment of this Court in Canara Bank v. M. Mahesh Kumar, (2015) 7 SCC 412, qua what would be the cut-off date for application of such scheme. 4. It is trite to emphasise, based on numerous judicial pronouncements of this Court, that compassionate appointment is not an alternative to the normal course of appointment, and that 4 (2020) 2 SCC 729 13 there is no inherent right to seek compassionate appointment. The objective is only to provide solace and succour to the family in difficult times and, thus, the relevancy is at that stage of time when the employee passes away. 5. An aspect examined by this judgment is as to whether a claim for compassionate employment under a scheme of a particular year could be decided based on a subsequent scheme that came into force much after the claim. The answer to this has been emphatically in the negative. It has also been observed that the grant of family pension and payment of terminal benefits cannot be treated as a substitute for providing employment assistance. The crucial aspect is to turn to the scheme itself to consider as to what are the provisions made in the scheme for such compassionate appointment."
B) From a reading of the authorities as cited above, it is clear that normally a claim to compassionate appointment is to be decided on the basis of the Scheme applicable and, not on a subsequent Scheme. However, the Hon'ble Apex Court was pleased to clarify that it would be crucial to examine the Scheme itself to find out whether the Scheme itself has made provisions for compassionate appointment in cases where the employee concerned had died prior to the Scheme coming into force.
C) This Court must turn for an answer to B) above to the impugned Order of the Hon'ble Single Bench. It is noticed that the Hon'ble Single Bench has taken pains to record the terms of the said Scheme in the following manner:
"The petitioner's father died on 28th June, 2017 while he was engaged as "Messenger" in the Group-"D" Category with the Bangiya Gramin Vikash Bank. The petitioner applied on 8th April, 2019 for being considered for compassionate employment in place and stead of his deceased father.
The Board of Directors of the Bank implemented a model scheme for compassionate employment on the line of all other Regional Rural Banks under the "National Bank for Agricultural and Rural Development" (NABARD) on 9th January, 2019. A communication to that effect was issued to all Branches, Departments and Head Office on 8th March, 2019.
The petitioner's application was rejected by a communication dated 16th November, 2019, inter alia, on the ground that the petitioner's father had died before the Scheme for Compassionate Employment Regulations of 2019 came into force. In lieu thereof, however, the Bank offered to the petitioner ex-gratia. The propriety and legality of the rejection order dated 16th November, 2019 has been questioned before this Court.
Ms. Rao, learned Counsel for the Bank has argued that since the Scheme came into force on 6th March, 2019 and the petitioner's father died in the year 2017, his application is outside the scheme. The date of the petitioner's application for compassionate employment and the consideration thereof are irrelevant.
The other argument advanced by the Counsel for the Bank that the petitioner's application if allowed would throw open flood gates of claims on account of all those persons, who died from the year 2015, cannot be sustained since such other persons are not before this court.
Ms. Rao has relied upon an unreported decision of the Single Bench of the Allahabad High Court in the case of Sarvesh Pandey v. Union of India dated 25th September, 2019 being Case No. WRIT-A No. 14578 of 2019.
The arguments advanced by Learned Counsel Ms. Rao for the Bank cannot be accepted.
This Court finds that the Scheme for Compassionate Employment was adopted sometime on 9th January, 2019 and was sent for implementation to all Branches by a communication dated 6th March, 2019.
"Coverage" in the Scheme is defined in Clause (1). "1.1. To a dependent family member of permanent employee of Bangiya Gramin Vikash Bank who - a) dies while in service (including death by suicide) b) is retired on medical grounds due to incapacitation before reaching the age of 55 years, (incapacitation is to be certified by a duly appointed Medical Board in a Government Medical College/Government District Head Quarters Hospitals/Panel of Doctors nominated by the Bank for the purpose). 1.2. For the purpose of the Scheme, "employee" would mean and include only a confirmed regular employee who was serving full time or part-time on scale wages, at the time of death/retirement on medical grounds, before reaching age of 55 years and does not include any one engaged on contract/temporary/casual or any person who is paid on commission basis."
The time limit for consideration of application is set out in Clause 8 under 8(1). Clause 8(2) of the said Scheme may also, however, be noted. "8. Time Limit for considering applications 8.1 Application for employment under the Scheme from eligible dependent should normally be considered upto five years from the date of death or retirement on medical grounds and decision to be taken on merit in each case. 8.2 However, Bank can consider request for compassionate appointment even when the death or retirement on medical grounds of the employee took place long back, even five years ago. While considering such belated requests, it should, however, be kept in view that the concept of compassionate appointment is largely related to the need for immediate assistance to 4 the family of the employee in order to relieve it from economic distress. The very fact that the family has been able to manage somehow, all these years should normally be taken as adequate proof that the family had some dependable means of subsistence. Therefore, examination of such cases would call for a great deal of circumspection. The decision to make appointment on compassionate grounds in such cases may, therefore, be taken only at the Board level."
A conjoint reading of Clause 1.2 and Clause 8.2 would indicate that the petitioner is indeed covered under the aforesaid Scheme for the following reasons : (a) Clause 8(2) clearly stipulates that the Bank could consider the request of compassionate employment in case of death or retirement on medical grounds even the employee had died 'five years ago'. The petitioner's father died in the year 2017, i.e. within 5 years prior to the coming into force of the Scheme. (b) The petitioner had applied on 8th April, 2019 after the date of implementation of the Scheme on 6th March, 2019. As on the date of the impugned order, i.e. 16th November, 2019, the aforesaid Scheme for compassionate employment was in force.
It is now well settled that the Rules in force at the time when a prayer is made and at the time of consideration of such prayer, are the only ones that have to be applied.
It is true that the compassionate employment is an exception to the General Rule of Employment. However, following the principle of Generalia Specialibus Non Derogant, if a Scheme and/or Rules specially prescribe for such appointment, in an organization, the said rules would become the basis of appointment for claims for such employment irrespective of the General Principles of application thereof.
The facts of the Sarvesh Pandey (supra) case are substantially different from that of the instant case. In the said decision the challenge was to the 5 year cutoff date after death of the employee, to seek compassionate employment. The mother of the applicant had already received exgratia and wanted compassionate appointment by refunding the said amount to the bank. The petitioner's father in the said case died before years of the Scheme coming into force.
The said decision is distinguishable in the facts of the case. While accepting retrospective operation conceived of under the said Scheme the Allahabad High Court held that the cut-off date of 5 year stipulated cannot be further stretched beyond. Hence the claim of the petitioner was rejected therein.
For the reasons stated hereinabove, this Court is of the view that the impugned order dated 16th November, 2019 cannot be sustained and is hereby set aside.
The respondent Bank shall consider the petitioner's claim for compassionate employment and process the same in accordance with the Scheme and the applicable Rules within a period of two months from the date of communication of a copy of this order.
The instant writ petition is allowed and disposed of. There will be no order as to costs. Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of all formalities."
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13. In the light of the above findings, this Court therefore holds that the said Scheme for compassionate appointment was applicable to the claim of the writ petitioner as on the date of the application of the writ petitioner. This Court further holds that the Hon'ble Single Bench has correctly noticed that the provisions of the said Scheme extend their coverage in the facts of this case to the death of the employee, i.e. the father of the writ petitioner, which took place within a period of five years of the implementation of the said Scheme as stated in Clause 8.2 of the same.
14. Accordingly, the claim of the writ petitioner falls within the zone of consideration as laid down In Re : CA 2798 of 2010 (supra) and noticed in CA 8564 of 2015 (supra), to the effect that if the said Scheme itself makes provisions for retrospective application extendable to five years from the death of the employee, the same shall be held to be applicable."
16. In Urmila Devi (supra), which again is a Bench decision of the Patna High Court, the relevant facts are that on 04.10.2012, three employees of the Central Bank had gone to the Nawada Branch of the bank for the purpose of remitting Rs.35 lacs to the Harnaut Branch. They were proceeding by an Ambassador Car provided by the bank. They were on duty. The car was waylaid on the National Highway and a robbery took place. In their attempt to force the car to stop, the robbers made it collide with a truck, leading to death of the three employees on board car. Thus, the robbery and the violence involved led to death of the three employees of the Central Bank, who were on duty. The family members of each of the three employees laid claim for compassionate appointment. It was recommended by the Regional Office, but the Head Office of the Bank rejected the claim. The disillusioned dependents of the three deceased employees instituted separate writ petitions. The learned Single Judge allowed the writ petitions directing the Bank to consider the case of the writ petitioners in accordance with the Scheme of 2007, as well as the Scheme of 2014. The Bank carried three appeals to the Bench on the ground that the dependents of the employees were not entitled to compassionate appointment. It was urged that the dependents were entitled to an ex gratia payment under the Scheme of 2007, but not compassionate appointment under the Scheme of 2014. The Scheme of 2014 is the same as the one involved in the present case. The Scheme of 2007 did not provide for compassionate appointment generally, but payment of ex gratia payment in lieu of compassionate appointment. However, by an amendment made to it on 19th July, 2007, two Clauses were added providing for compassionate appointment in the following contingencies:
"(a) dies while performing his official duty as a result of violence, terrorism, robbery or dacoity or
(b) dies within five years of his first appointment or before he reaches the age of 30 years, whichever is later, leaving a dependent spouse and/or minor children."
17. Subsequently, the Scheme of 2014 came into force w.e.f. 05.08.2014 introducing a general right of compassionate appointment. It carried Clauses 8.1 and 8.2, that are under consideration here. In the appeal, it was the Bank's case that the death of the employees was on account of a road accident and not a robbery while performing duty or as a result of violence, terrorism or dacoity. The Division Bench accepted the Bank's case on this score to be correct, because the only evidence of the incident was an FIR, which showed that the car on official duty collided with a truck leading to the employees' death. There was no material on record to show that death was the result of violence, terrorism, robbery or dacoity. Urmila Devi's case was nevertheless accepted by their Lordships on ground that her husband died within five years of his first appointment and before he reached the age of 30 years attracting the other contingency postulated under the amendment to the Scheme of 2007.
18. Since, however, there were three different employees, whose dependents have claimed, and, one of them alone fell under Clause (b) of the amended Scheme of 2007, their Lordships examined the case of the petitioners, atleast the two others, under Clause 8.1 of the Scheme of 2007. The writ petitioners were held entitled under the Scheme of 2014, holding that Clause 8.1 would apply to cases "where death occurred within five years from the date of coming into force of the Scheme and not after 05.08.2014." Speaking for the Division Bench in Urmila Devi, it was held by Rajendra Menon, C.J.:
"7. As far as all three employees were concerned, even if their cases do not fall under Clause (a) of the Scheme, 2007, we find that their cases would fall under Clause 8.1. of the Scheme of 2014, as the incident in question took place on 04.10.2012 and their cases of employment under the Scheme has to be considered up to five years from the date of death or retirement on medical ground etc. It is the contention of the Bank before us and Sri Ajay Kumar Sinha, learned counsel appearing for the Bank, vehemently argued that the Scheme in question of the year 2014 has come into force with effect from 05.08.2014 and, therefore, only if the accident occurs after 05.08.2014, then their cases can be considered five years from the date of coming into force of the Scheme. If such a contention is accepted, then clause 8.1. would be redundant. It would not cover any case where death occurred prior to 05.08.2014. It would only apply in cases where death occurs five years after 05.08.2014. This could never be the intention of the formulator of the Scheme. The clause 8.1. of the Scheme of 2014, in our view, was introduced for granting benefit of compassionate appointment in such cases where death occurred within five years from the date of coming into force of the Scheme of 2014 and not after 05.08.2014. The learned Writ Court has also considered this aspect of the matter and has directed for considering the case of the employees under these clauses and we see no error in the same warranting reconsideration. In our considered view, the purpose of incorporating clause 8.1. in the Scheme of 2014 would only be for giving benefit of compassionate appointment in cases where death occurs five years prior to coming into force of the Scheme and if the contention advanced by the Bank is accepted, we are of the considered view that Clause 8.1. of the Scheme of 2014 need not be incorporated in the manner it has been done. Accordingly, finding no merit, we dismiss the appeals."
19. Adopting the same line of reasoning as the one that prevailed with the Calcutta High Court and the Patna High Court, it was held by a learned Single Judge of the Rajasthan High Court in Gigna Devi (supra) with reference to Clauses 8.1 and 8.2 of the Scheme on the issue of its retrospective application:
"8. A bare perusal of the above clause makes it clear that the same provides for consideration of the eligible dependents for compassionate appointment normally upto five years from the date of death but can consider the cases even where death took place more than five years ago. The present one is a specific case where the application for compassionate appointment was moved in the year 2014 and the same was not even considered for a long period of three years. It is only in the year 2017 that the bank took a stand that there is no scheme for compassionate appointment which governs the respondent bank. Soon after the said communication, the present writ petition has been preferred and meanwhile, admittedly the policy of 2019 has been adopted by the respondent bank which specifically provides for consideration of cases wherein the death of an employee occurred five years ago or even prior to that. So far as the case of Ashish Awasthi (supra) relied upon by learned counsel for the respondents is concerned, it was a case wherein there was no dispute regarding the existence of any scheme for compassionate appointment. The dispute therein was as to the date of applicability of the policy and as to which policy would apply. The present case can be differentiated from the said matter as in the present matter there is no dispute regarding the applicability of the policy. Moreover, in Ashish Awasthi's case (supra) there was no clause similar to that of Clause 8 in the present scheme.
9. In the present matter, the scheme applicable to the respondent bank itself specifically provides for consideration of cases wherein the death had occurred more than five years ago. The same naturally has been incorporated with an intention to give it a retrospective effect. The death of the employee took place in the year 2014, the application for compassionate appointment was filed in the same year, i.e., 2014 and the policy/scheme was adopted by the Bank in the year 2019. Therefore, the application for compassionate appointment filed by petitioner No. 1 in the year 2014 definitely falls within the purview of Clause 8 of the Scheme as the death had occurred five years ago from the year of adoption of the policy."
20. The question arising here fell for consideration of the Supreme Court in Ashish Awasthi (supra). In that case, the writ petitioner's father was a Chowkidar in the office of the Assistant Engineer, Public Health Engineer, District Tikamgarh, Madhya Pradesh. The petitioner's father died in harness on 08.10.2015. At the time of his demise, the deceased was serving in the work charged establishment and paid salary from the contingency fund. The writ petitioner was paid a compensatory sum of Rs.2 lakhs as per the policy in force at the time of his father's demise, to wit, the policy dated 29.09.2014. Later on, a policy for compassionate appointment was introduced in the employer's establishment vide amended Circular dated 31.08.2016 providing that in the event of death of an employee in the work charged establishment, one of his heirs/ dependents would be eligible for appointment on compassionate grounds.
21. The writ petitioner instituted a petition in the High Court, which came to be decided in terms of a direction to the employers to decide the writ petitioner's representation in accordance with law. To avail of the directions, the writ petitioner made an application to the employer, which was rejected by an order dated 15.03.2017 on ground that the Policy/ Circular dated 31.08.2016 was applicable prospectively, that is to say, w.e.f. 22.12.2016, whereas the employee, on account of whose death the writ petitioner claimed compassionate appointment, passed away on 08.10.2015. This led the writ petitioner to institute another writ petitioner before the High Court. It was dismissed by the learned Single Judge holding that the Policy in force at the time of demise of the employee in the work charged establishment would govern the right of his dependents to compassionate appointment and any subsequent Policy would not apply.
22. The writ petitioner carried the matter in appeal to the Division Bench. The Division Bench allowed the appeal and directed the appellant to consider the writ petitioner's case for appointment on compassionate grounds relying upon the Policy/ Circular dated 31.08.2016.
23. In Appeal by Special Leave carried by the State of Madhya Pradesh, negativing the writ petitioner's contention, it was held by their Lordships:
"5. As per the settled proposition of law laid down by this Court for appointment on compassionate ground, the policy prevalent at the time of death of the deceased employee only is required to be considered and not the subsequent policy.
6. In Indian Bank v. Promila [Indian Bank v. Promila, (2020) 2 SCC 729 : (2020) 1 SCC (L&S) 312] , it is observed and held that claim for compassionate appointment must be decided only on the basis of relevant scheme prevalent on date of demise of the employee and subsequent scheme cannot be looked into. Similar view has been taken by this Court in State of M.P. v. Amit Shrivas [State of M.P. v. Amit Shrivas, (2020) 10 SCC 496 : (2021) 1 SCC (L&S) 68] . It is required to be noted that in Amit Shrivas [State of M.P. v. Amit Shrivas, (2020) 10 SCC 496 : (2021) 1 SCC (L&S) 68] the very scheme applicable in the present case was under consideration and it was held that the scheme prevalent on the date of death of the deceased employee is only to be considered. In that view of the matter, the impugned judgment and order [Ashish Awasthi v. State of M.P., 2018 SCC OnLine MP 1824] passed by the Division Bench is unsustainable and deserves to be quashed and set aside."
24. The issue whether the claim of a dependent under the dying in harness rules would be considered in accordance with the Rule or the Scheme in force on the date of death of the employee in harness or at a subsequent date, like the one when a dependent makes an application, or the application comes up for consideration, was the subject matter of very elaborate guidance by their Lordships of the Supreme Court in Secretary to Govt. Department of Education (Primary) v. Bheemesh alias Bheemappa, AIR 2022 SC 402. The facts giving rise to what was held in Bheemesh alias Bheemappa (supra) may best be recounted in their Lordships' words, which read:
"8. Admittedly, the appointment on compassionate grounds in the State of Karnataka is governed by a set of Rules known as Karnataka Civil Services (Appointment on Compassionate grounds) Rules, 1996, issued in exercise of the powers conferred by Section 3(1) read with Section 8 of the Karnataka State Civil Services Act, 1978. The Rules as they stood, on the date on which the sister of the respondent died in harness, did not include an unmarried brother, within the definition of the expression "dependant of a deceased Government servant" under Rule 2(1)(a) of the said Rules vis-a-vis a deceased female unmarried Government servant. But it was only by way of an amendment proposed under a draft Notification dated 20.06.2012 which was given effect under the final Notification bearing No. DPAR 55 SCA 2012, Bangalore dated 11.07.2012 that an unmarried brother of a deceased female unmarried Government servant was included within the definition. There is no dispute about the fact that the sister of the respondent died as an unmarried female Government servant, but on 8.12.2010, before the amendment was made to the Rules."
25. In answering the issue whether the amended rules that came into force after the death of the government servant involved, would have retrospective operation to enure for the benefit of the dependent unmarried brother of the deceased unmarried female government servant in that case, or the amendment would apply prospectively with effect from the date when it came into force, it was held by their Lordships:
"9. To hold that the amendment will have retrospective application, the High Court as well as the Tribunal relied upon a Judgment of the Division Bench of the High Court of Karnataka in State of Karnataka v. Akkamahadevamma and others, decided on 18.11.2010 in Writ Petition Nos.20914 of 2010 etc.: (Reported in 2011 (2) AIR Kar R 118). But it should be pointed out at the outset that the Judgment of the High Court in Akkamahadevamma arose out of an amendment to the Karnataka Civil Services (General Recruitment) (57th Amendment) Rules, 2000. By the Amendment made on 30.03.2010 to the said Rules, grandson, unmarried granddaughter, daughter in law, widowed daughter and widowed granddaughter were included within the definition of the expression "members of the family" under Explanation-2 of Rule 9. But the amendment so made on 30.03.2010 expanding the definition of the expression "members of the family" was triggered by an Order of the Tribunal which held the unamended rule to be unconstitutional. It is in that context that the amendment made on 30.03.2010 to the Rules issued on 23.11.2000 was held by the High Court to be retrospective in nature. It must also be remembered that the expanded definition was with respect to project displaced persons. The right conferred upon a project displaced person stands on a different footing from the entitlement of a person to seek appointment on compassionate grounds. In any case an amendment brought forth, on the basis of a Judgment of a Court or Tribunal, holding the exclusion of certain categories of persons to be violative of Articles 14 and 16 of the Constitution, may receive an interpretation such as the one proposed by the High Court in Akkamahadevamma. But the same may not be applicable to amendments of the nature that we are concerned with in this case.
10. x x x
11. Be that as it may, Sh. Jayanth Muthraj, learned senior counsel appearing for the respondent pleaded that there are two lines of Judgments of this Court, one taking the view that the Rules/Scheme in force on the date of death of the Government servant would govern the field and the other holding that the Rules/scheme in force on the date of consideration of the claim would govern the field. Unable to reconcile this conflict, a two Member Bench of this Court, by its Order dated 08.02.2019 in State Bank of India v. Sheo Shankar Tewari1, has referred the matter for consideration by a larger Bench. Sh. Jayanth Muthraj, learned senior counsel therefore made a request that the present appeal may either be placed along with the reference or await a decision on the above reference.
12. But we do not consider it necessary to do so. It is no doubt true that there are, as contended by the learned senior Counsel for the respondent, two lines of decisions rendered by Benches of equal strength. But the apparent conflict between those two lines of decisions, was on account of the difference between an amendment by which an existing benefit was withdrawn or diluted and an amendment by which the existing benefit was enhanced. The interpretation adopted by this Court varied depending upon the nature of the amendment. This can be seen by presenting the decisions referred to by the learned senior counsel for the respondent in a tabular column as follows:
There is an elaborate tabulated reference to six cases decided by the Supreme Court, where seemingly varying views have been expressed on the issue whether the scheme in force at the time of death of the deceased employee would apply for the purpose of consideration of the dependent's claim for compassionate appointment or the Rule/ Scheme in force subsequently enforced, after the death of the government servant, at the time when the application for compassionate appointment is made or comes up for consideration. For brevity's sake, the table set out in Paragraph No.12 of the report in Bheemesh alias Bheemappa is not being quoted.
26. Two other cases after the tabulated analysis have been considered in Bheemesh alias Bheemappa, where it is observed:
"13. Apart from the aforesaid decisions, our attention was also drawn to the decision of the three member Bench in State of Madhya Pradesh v. Amit Shrivas2. But that case arose out of a claim made by the dependant of a deceased Government servant, who was originally appointed on a work charged establishment and who later claimed to have become a permanent employee. The Court went into the distinction between an employee with a permanent status and an employee with a regular status. Despite the claim of the dependant that his father had become a permanent employee, this Court held in that case that as per the policy prevailing on the date of death, a work charged/contingency fund employee was not entitled to compassionate appointment. While holding so, the Bench reiterated the opinion in Indian Bank v. Promila.
14. The aforesaid decision in Amit Shrivas (supra) was followed by a two member Bench of this Court in the yet to be reported decision in the State of Madhya Pradesh v. Ashish Awasthi decided on 18.11.2021 : (Reported in AIROnline 2021 SC 1047)."
27. After noticing these seemingly divergent opinions on the issue, the Court has proceeded to observe in Bheemesh alias Bheemappa:
"15. Let us now come to the reference pending before the larger Bench. In State Bank of India v. Sheo Shankar Tewari (supra), a two member Bench of this Court noted the apparent conflict between State Bank of India v. Raj Kumar and MGB Gramin Bank on the one hand and Canara Bank vs. M. Mahesh Kumar on the other hand and referred the matter for the consideration of a larger Bench. The order of reference to a larger Bench was actually dated 8.02.2019.
16. It was only after the aforesaid reference to a larger Bench that this Court decided at least four cases, respectively in (i) Indian Bank v. Promila; (ii) N.C. Santhosh v. State of Karnataka; (iii) State of Madhya Pradesh vs. Amit Shrivas; and (iv) State of Madhya Pradesh v. Ashish Awasthi. Out of these four decisions, N.C. Santosh (supra) was by a three member Bench, which actually took note of the reference pending before the larger Bench.
17. Keeping the above in mind, if we critically analyse the way in which this Court has proceeded to interpret the applicability of a new or modified Scheme that comes into force after the death of the employee, we may notice an interesting feature. In cases where the benefit under the existing Scheme was taken away or substituted with a lesser benefit, this Court directed the application of the new Scheme. But in cases where the benefits under an existing Scheme were enlarged by a modified Scheme after the death of the employee, this Court applied only the Scheme that was in force on the date of death of the employee. This is fundamentally due to the fact that compassionate appointment was always considered to be an exception to the normal method of recruitment and perhaps looked down upon with lesser compassion for the individual and greater concern for the rule of law.
18. If compassionate appointment is one of the conditions of service and is made automatic upon the death of an employee in harness without any kind of scrutiny whatsoever, the same would be treated as a vested right in law. But it is not so. Appointment on compassionate grounds is not automatic, but subject to strict scrutiny of various parameters including the financial position of the family, the economic dependence of the family upon the deceased employee and the avocation of the other members of the family.Therefore, no one can claim to have a vested right for appointment on compassionate grounds. This is why some of the decisions which we have tabulated above appear to have interpreted the applicability of revised Schemes differently, leading to conflict of opinion. Though there is a conflict as to whether the Scheme in force on the date of death of the employee would apply or the Scheme in force on the date of consideration of the application of appointment on compassionate grounds would apply, there is certainly no conflict about the underlying concern reflected in the above decisions. Wherever the modified Schemes diluted the existing benefits, this Court applied those benefits, but wherever the modified Scheme granted larger benefits, the old Scheme was made applicable.
19. The important aspect about the conflict of opinion is that it revolves around two dates, namely, (i) date of death of the employee; and (ii) date of consideration of the application of the dependant. Out of these two dates, only one, namely, the date of death alone is a fixed factor that does not change. The next date namely the date of consideration of the claim, is something that depends upon many variables such as the date of filing of application, the date of attaining of majority of the claimant and the date on which the file is put up to the competent authority. There is no principle of statutory interpretation which permits a decision on the applicability of a rule, to be based upon an indeterminate or variable factor. Let us take for instance a hypothetical case where 2 Government servants die in harness on January 01, 2020. Let us assume that the dependants of these 2 deceased Government servants make applications for appointment on 2 different dates say 29.05.2020 and 02.06.2020 and a modified Scheme comes into force on June 01, 2020. If the date of consideration of the claim is taken to be the criteria for determining whether the modified Scheme applies or not, it will lead to two different results, one in respect of the person who made the application before June 1, 2020 and another in respect of the person who applied after June 01, 2020. In other words, if two employees die on the same date and the dependants of those employees apply on two different dates, one before the modified Scheme comes into force and another thereafter, they will come in for differential treatment if the date of application and the date of consideration of the same are taken to be the deciding factor. A rule of interpretation which produces different results, depending upon what the individuals do or do not do, is inconceivable. This is why, the managements of a few banks, in the cases tabulated above, have introduced a rule in the modified scheme itself, which provides for all pending applications to be decided under the new/modified scheme. Therefore, we are of the considered view that the interpretation as to the applicability of a modified Scheme should depend only upon a determinate and fixed criteria such as the date of death and not an indeterminate and variable factor.
20. Coming to the case on hand, the employee died on 8.12.2010 and the amendment to the Rules was proposed by way of a draft notification on 20.06.2012. The final notification was issued on 11.07.2012. Merely because the application for appointment was taken up for consideration after the issue of the amendment, the respondent could not have sought the benefit of the amendment. The Judgment of the Division Bench of the Karnataka High Court in Akkamaha-devamma on which the Tribunal as well as the High Court placed reliance, was not applicable to the case of compass-ionate appointments, as the amendment in Akkamahadevamma came as a result of the existing rule being declared to be ultra vires Articles 14 and 16 of the Constitution."
28. Here, there is no issue that in the Scheme in question, there is no provision at all about consideration of pending applications for compassionate appointment made prior to the introduction of the Scheme w.e.f. 15th March, 2019. This is logically so because the present case is not one where there was apparently an older scheme granting some kind of limited right to a consideration for compassionate appointment in force or a right to an ex-gratia payment, whereunder an application could be made by the dependent of a deceased employee. What appears from the facts here is that prior to 15th March, 2019, there was no scheme at all in the establishment of the respondent Bank in force extending any kind of a right to compassionate appointment, howsoever limited or circumscribed. The right to compassionate appointment upon introduction of the Scheme w.e.f. 15th March, 2019 was a new found right. In the absence, therefore, of any provision in the Scheme for whatever reason to provide rights for dependents of an employee, who died prior to its introduction, asking for compassionate appointment, there could be no right to compassionate appointment. It has already been pointed out that the right to compassionate appointment is not an inherent right, but one that flows from a Rule or Scheme being in force at the time of the death of an employee in harness. There could be more reason to supply in aid of that interpretation. Once it is held that the right to compassionate appointment is not inherent, but the creature of a Rule, the right of whatever kind it is, originates and culminates on the date of death of the employee in harness. There is no fact surviving the death of an employee in harness on the foot of which, a Scheme or Rule for compassionate appointment introduced at a later date, may afford the dependent a right to consideration. Of course, that kind of a right may arise if the Scheme provides for that right on its own terms. Here, the words employed in Clause 8.1, or for that matter Clause 8.2 of the Scheme, do not envisage cognizance of cases of dependents, where death of an employee in harness has taken place before the Scheme was enforced in the Bank. The employment of the expression in Clause 8.1 "normally be considered upto five years from the date of death" refers to the period of five years of death on a date when the Scheme was already in force in the Bank; not five years or a little short of that time antedating the introduction of the Scheme.
29. In the opinion of this Court, therefore, no case for interference with the order impugned is made out.
30. This petition fails and is dismissed.
31. There shall be no order as to costs.
Order Date :- 17.7.2023 Anoop