Himachal Pradesh High Court
Tej Singh vs Bbmb & Anr on 20 December, 2022
Bench: Tarlok Singh Chauhan, Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA LPA No. 191/2016 Reserved on: 15.12.2022 Decided on : 20.12.2022 .
Tej Singh .....Petitioner
Versus
BBMB & anr. ....Respondents
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Ms. Justice Virender Singh, Judge.
Whether approved for reporting?1 Yes For the Appellant: Mr. Tek Chand Sharma, Advocate. For the Respondents: Mr. Aman Sood, Advocate. _____________________________________________________________________ Justice Tarlok Singh Chauhan, Judge The appellant approached the learned writ Court by filing a petition for grant of the following substantive relief:
"That the respondents may kindly be directed to relax its policy dated 21.10.2005 and offer compassionate appointment as a Class-III/IV to the petitioner as a special case being dependent of deceased employee who was electrocuted while on duty and died on the spot."
2 The case of the appellant is that his father, Mr. Sohan Singh, while serving as regular Chowkidar in the respondents-
Board, died in harness on 14.11.2007. The deceased was the sole bread earner of the family and the appellant being son was entitled to be appointed on compassionate basis, however the 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 22/12/2022 20:32:04 :::CIS 2application so submitted for the purpose to the respondents-
Board was returned back with the observations that the .
compassionate appointment had been discontinued in view of new policy dated 3.11.2005. This constrained the appellant to issue legal notice and in response thereto, the respondents-
Board, stated that the appellant's mother was not entitled to be appointed on compassionate ground on account of death of her husband as per policy decision of the Board dated 3.11.2005.
Thereafter the appellant again submitted representation on 22.8.2009 seeking compassionate appointment as a special case.
3 According to the appellant, being the dependent of the sole bread earner, he has wrongly been denied the compassionate appointment on the pretext of policy dated 21.10.2005, whereas the dependents of the employees of the respondent-Board taken from other states/Electricity Board have been exempted from the existence of the policy and they are being appointed on compassionate ground.
4 The respondents-Board contested the writ petition by filing reply, wherein it was stated that the respondent-Board had discontinued its policy for grant of compassionate appointment and at the time of death of father of the appellant, such policy was not in existence in the respondents-Board, thus, the ::: Downloaded on - 22/12/2022 20:32:04 :::CIS 3 appellant was not entitled for appointment on compassionate ground.
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5 It was further averred that in place of earlier policy of compassionate appointment, an alternate policy had been adopted by the respondents-Board to compensate the family of the deceased employees. As per the alternate policy, mother of the appellant was paid a sum of Rs.3 lacs on 7.9.2009 as solatium and in addition, she was being paid special pension regularly and an ex-gratia amount of Rs.50,000/- stood paid to her on 13.7.2009 apart from an amount of Rs.89,808/- on account of death-cum-retirement gratuity.
6 The long and short of the reply of the respondents-
Board was that once earlier policy for grant of compassionate appointment had been discontinued and substituted by a new alternate policy, there cannot be any deviation from the same, therefore, the appellant could not be considered much less appointed on compassionate ground.
7 The learned writ Court after, concluding that the compassionate appointment was not a source of recruitment, dismissed the writ petition holding therein that in absence of there being rules or regulations issued by the respondents-Board ::: Downloaded on - 22/12/2022 20:32:04 :::CIS 4 for compassionate appointment, no such claim was maintainable before the Court.
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8 Mr. Tek Chand Sharma, learned counsel for the appellant, would strongly urge that the learned Single Judge, while passing the impugned judgment, has ignored the constitutional role of imparting social justice and would heavily bank upon the judgment passed by the Hon'ble Supreme court in Balbir Kaur vs. Steel Authority of India (2000) 6 SCC 493, more particularly, observations contained in paras 8, 9, 13, 15, 16 and 19, which read as under:-
8. The employer being Steel Authority of India, admittedly an authority within the meaning of Article 12 has thus an obligation to act in terms of the avowed objective of social and economic justice as enshrined in the Constitution but has the authority in the facts of the matters under consideration acted like a model and an ideal employer It is in this factual backdrop, the issue needs an answer as to whether we have been able to obtain the benefit of constitutional philosophy of social and economic justice or not. Have the lofty ideals which the founding fathers placed before us any effect in our daily life the answer cannot however but be in the negative what happens to the constitutional philosophy as is available in the Constitution itself, which we ourselves have so fondly conferred on to ourselves. The socialistic pattern of society as envisaged in the Constitution has to be attributed its full meaning: A person dies while taking the wife to a hospital and the cry ::: Downloaded on - 22/12/2022 20:32:04 :::CIS 5 of the lady for bare subsistence would go unheeded on certain technicality. The bread earner is no longer available .
and prayer for compassionate appointment would be denied, as it is likely to open a Pandoras Box This is the resultant effect of our entry into the new millennium. Can the law courts be a mute spectator in the matter of denial of such a relief to the horrendous sufferings of an employees family by reason of the death of the bread-earner. It is in this context this Courts observations in Dharwad Distt. PWD Literate Daily Wage Employees Assn. & Ors. v. State of Karnataka & Ors. [1990 (2) SCC 396] seem to be rather apposite. This Court upon consideration of Randhir Sigh v.
Union of India, [1988 (1) SCC122] as also Surinder Singh v.
Engineer-in-chief [1986 (1) SCC 639]; and DS Nakara v. Union of India [1983 (1) SCC 305] observed in paragraphs 14 and 15 as below:
14. We would like to point out that the philosophy of this Court as evolved in the cases we have referred to above is not that of the court but is ingrained in the Constitution as one of the basic aspects and if there was any doubt on this there is no room for that after the Preamble has been amended and the Forty-second Amendment has declared the Republic to be a socialistic one. The judgments, therefore, do nothing more than highlight one aspect of the constitutional philosophy and make an attempt to give the philosophy a reality of flesh and blood.
15. Jawaharlal Nehru, the first Prime Minister of this Republic while dreaming of elevating the lot of the common man of this country once stated:
Our final aim can only be a classless society with equal economic justice and opportunity to all, a society organised on a planned basis for the raising of mankind to higher material and cultural levels. Everything that comes in the way will have to be removed gently, if possible; forcibly if necessary, and there seems to be little doubt that coercion will often be necessary. These were his prophetic words about three decades back. More than a quarter of century has run out since he left us but there has yet been no percolation in adequate dose of the benefits the constitutional philosophy stands for to the lower strata of society. Tolstoy wrote:::: Downloaded on - 22/12/2022 20:32:04 :::CIS 6
The abolition of slavery has gone on for a long time. Rome abolished slavery. America abolished it and we did but only the words were abolished, not the thing.
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Perhaps what Tolstoy wrote about abolition of slavery in a large sense applies to what we have done to the constitutional ethos. It has still remained on paper and is contained in the book. The benefits have not yet reached the common man. What Swami Vivekananda wrote in a different context may perhaps help a quicker implementation of the goal to bring about the overdue changes for transforming India in a positive way and in fulfilling the dreams of the Constitution fathers. These were the words of the Swami:
It is imperative that all this various yogas should be carried out in practice. Mere theories about them will not do any good. First we have to hear about them; then we have to think about them. We have to reason the thoughts out, impress them on our minds and meditate on them; realise them, until at last they become our whole life. No longer will religion remain a bundle of ideas or theories or an intellectual assent; it will enter into our very self. By means of an intellectual assent, we may today subscribe to many foolish things, and change our minds altogether tomorrow.
But true religion never changes. Religion is realisation; not talk, nor doctrine, nor theories, however beautiful they may be. It is being and becoming, not hearing or acknowledging. It is the whole souls becoming changed into what it believes. That is religion.
9. As a matter of fact the constitutional philosophy should be allowed to become a part of every mans life in this country and then only the Constitution can reach everyone and the ideals of the Constitution framers would be achieved since the people would be nearer the goal set by the Constitution - an ideal situation but a far cry presently.
13. Mr. Bhasme, learned Advocate appearing for the Steel authority contended that the Family Benefit Scheme was introduced on 21st November, 1992 and the salient features of the Scheme were to the effect that the family being unable to obtain regular salary from the management, could avail of the scheme by depositing the lump sum provident fund and gratuity amount with the company in lieu of which the management would make monthly payment equivalent to the basic pay together with dearness allowance last drawn, which payment would continue till the normal date ::: Downloaded on - 22/12/2022 20:32:04 :::CIS 7 of superannuation of the employee in question. Mr. Bhasme further contended that adaptation of this Family Benefit .
Scheme was meant to provide an assured or regular income per month, while the bulk amount deposited by way of provident fund and gratuity with the management remained intact. Mr. Bhasme, contended that consequently on deposits as above, with the management, the employees family could avail of pay up to normal date of superannuation on the footing that the employee though not actually working but notionally continued to work till the normal date of superannuation and such a scheme in fact stands at a much better footing and much more beneficial to an employee or a deceased employee. Apparently these considerations weighed with the High Court and the latter thus proceeded on the basis that by reason of adaptation of a Family Benefit Scheme by the Employees Union, question of any departure therefrom or any compassionate appointment does not and cannot arise. But in our view this Family Benefit Scheme cannot be in any way equated with the benefit of compassionate appointments. The sudden jerk in the family by reason of the death of the bread earner can only be absorbed by some lump sum amount being made available to the family This is rather unfortunate but this is a reality. The feeling of security drops to zero on the death of the bread earner and insecurity thereafter reigns and it is at that juncture if some lump sum amount is made available with a compassionate appointment, the grief stricken family may find some solace to the mental agony and manage its affairs in the normal course of events. It is not that monetary benefit would be the replacement of the bread ::: Downloaded on - 22/12/2022 20:32:04 :::CIS 8 earner, but that would undoubtedly bring some solace to the situation.
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15. It is upon consideration of the above noted provisions of Section 4, it was contended that question of compulsory depositing of the gratuity amount does not and cannot arise. We shall come back to the deposit of the Provident Fund but as regards the Gratuity amount, be it noted that there is a mandate of the statute that Gratuity is to be paid to the employee on his retirement or to his dependants in the event of his early death the introduction of Family Pension Scheme by which the employee is compelled to deposit the Gratuity amount, as a matter of fact runs counter to this beneficial piece of legislation (Act of 1972).
The statutory mandate is unequivocal and unambiguous in nature and runs to the effect that the gratuity is payable to the heirs of the nominees of the concerned employees but by the introduction of the Family Pension Scheme, this mandate stands violated and as such the same cannot but be termed to be illegal in nature. We do find some substance in the contention as raised, a mandatory statutory obligation cannot be trifled with by adaptation of a method which runs counter to the statute. It does not take long to appreciate the purpose for which this particular Family Pension Scheme has been introduced by deposit of the provident fund and the gratuity amount and we are not expressing any opinion in regard thereto but the fact remains that statutory obligation cannot be left high and dry on the whims of the employer irrespective of the factum of the employer being an authority within the meaning of Article 12 or not.
::: Downloaded on - 22/12/2022 20:32:04 :::CIS 916. Adverting to the Provident Fund, be it noted that the same is payable to an employee under the provisions of a .
statute and this statutory obligation cannot possibly by deferred in the event of an untimely death of a worker or an employee. As noticed above, the family needs the money in lump-sum and availability of this amount is the only insulating factor in such a grief stricken family. The amount is payable in one lump and as a matter of fact it acts as a buffer to the retirement of or on the death of an employee.
Situations are not difficult to conceive when the family needs some lump- sum amount but in the event of deposit of the same with the employer, the heirs of the deceased employee could be put into the same problems of realities of life, even though, if this money would have been made available to them the situation could have been otherwise.
19. Mr. Bhasme, further pointed out that though the present appeals related to two individual cases but any interpretation contrary to the one canvassed by the respondent is likely to open a Pandora box, since in the huge empire of the respondent, several such cases would be existing which would have to be reconsidered. Mr. Bhasme further contended that family members of large number of the employees have already availed of the Family Benefit Scheme and as such it would be taken to be otherwise more beneficial to the concerned employee. We are not called upon to assess the situation but the fact remains that having due regard to the constitutional philosophy to decry a compassionate employment opportunity would neither be fair nor reasonable. The concept of social justice is the yardstick to the justice administration system or the legal justice and as Roscsoe Pound pointed out that the greatest ::: Downloaded on - 22/12/2022 20:32:04 :::CIS 10 virtue of law is in its adaptability and flexibility and thus it would be otherwise an obligation for the law courts also to .
apply the law depending upon the situation since the law is made for the society and whichever is beneficial for the society, the endeavour of the law court would be to administer justice having due regard in that direction."
9 We really wonder how the aforesaid judgment is applicable to the facts of the instant case. For, it is more than settled that the claim for compassionate appointment r is traceable only to specific scheme framed by the employer for such employment and there is no right whatsoever outside such scheme. There can be no immediate or automatic appointment merely on an application. Thus, the appellant does not have any right of employment as dependent of the family member of the deceased employee.
10 In taking this view, we are duly fortified by the judgment passed by the Hon'ble Supreme Court in State Bank of India vs. Raj Kumar, (2010) 11 SCC 661, wherein it has been categorically held that the appointment under the scheme can be made only if scheme is in force and not after it is abolished/withdrawn. It shall be apt here to reproduce relevant observations as contained in paragraphs 8, 12 to 16, 21 and 22 of the judgment, which read as under:-
::: Downloaded on - 22/12/2022 20:32:04 :::CIS 118. It is now well settled that appointment on compassionate grounds is not a source of recruitment. On the other hand it .
is an exception to the general rule that recruitment to public services should be on the basis of merit, by an open invitation providing equal opportunity to all eligible persons to participate in the selection process. The dependants of employees, who die in harness, do not have any special claim or right to employment, except by way of the concession that may be extended by the employer under the Rules or by a separate scheme, to enable the family of the deceased to get over the sudden financial crisis. The claim for compassionate appointment is therefore traceable only to the scheme framed by the employer for such employment and there is no right whatsoever outside such scheme. An appointment under the scheme can be made 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 scheme will also cease to exist, unless saved. The mere fact that an application was made when the scheme was in force, will not by itself create a right in favour of the applicant.
12. Obviously, therefore, there can be no immediate or automatic appointment merely on an application. Several circumstances having a bearing on eligibility, and financial condition, upto the date of consideration may have to be taken into account. As none of the applicants under the scheme has a vested right, the scheme that is in force when the application is actually considered, and not the scheme that was in force earlier when the application was made, will be applicable.
::: Downloaded on - 22/12/2022 20:32:04 :::CIS 1213. Further where the earlier scheme is abolished and the new scheme which replaces it specifically provides that all .
pending applications will be considered only in terms of the new scheme, then the new scheme alone will apply. As compassionate appointment is a concession and not a right, the employer may wind up the scheme or modify the scheme at any time depending upon its policies, financial capacity and availability of posts.
14. In this context we may usefully refer to the decision of this Court in Union of India vs. R. Padmanabhan, 2003 (7) SCC 270, wherein this Court observed :
"That apart, being ex gratia, no right accrues to any sum as such till it is determined and awarded and, in such cases, normally it should not only be in terms of the Guidelines and Policy, in force, as on the date of consideration and actual grant but has to be necessarily with reference to any indications contained in this regard in the Scheme itself. The line of decisions relation to vested rights accrued being protected from any subsequent amendments may not be relevant for such a situation and it would be apposite to advert to the decision of this Court reported in State of Tamil Nadu vs. Hind Stone and Ors. - 1981 (2) SCC
205. That was a case wherein this Court had to consider the claims of lessees for renewal of their leases or for grant of fresh leases under the Tamil Nadu Minor Mineral Concession Rules, 1959. The High Court was of the view that it was not open to the State Government to keep the applications filed for lease or renewal for a long time and then dispose them of on the basis of a rule which had come into force later. This Court, while reversing such view taken by the High Court, held that in the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application, despite the delay, if any, involved although it is desirable to dispose of the applications, expeditiously."
15. We may also refer to the decision of this Court in Kuldeep Singh v. Govt. of NCT of Delhi [2006 (5) SCC 702] which considered the question of grant of liquor vend licences. This Court held that where applications required processing and verification the policy which should be applicable is the one which is prevalent on the date of grant ::: Downloaded on - 22/12/2022 20:32:04 :::CIS 13 and not the one which was prevalent when the application was filed. This Court clarified that the exception to the said .
rule is where a right had already accrued or vested in the applicant, before the change of policy.
16. In this case the employee died in October, 2004, the application was made only in June, 2005. The application was not even by the respondent, but by his mother. Therefore, it was necessary to ascertain whether respondent really wanted the appointment, whether he possessed the eligibility, and whether any post was available. Within two months of the application, the new scheme came into force and the old scheme was abolished.
The new scheme specifically provided that all pending applications will be considered under the new scheme. Therefore it has to be held that the new scheme which came into force on 4.8.2005 alone will apply even in respect of pending applications.
20. The respondent was not entitled to be considered for compassionate appointment. The High Court was not justified in quashing the communication dated 31.1.2006 or in directing reconsideration of the case of the respondent for compassionate appointment.
21. We therefore allow this appeal in part as follows:
(i) The orders of the learned Single Judge and Division Bench are set aside.
(ii) The respondent and/or his family may file a fresh application under the new scheme, as directed by the Bank in its letter dated 31.1.2006.
(iii) The appellant Bank is directed to process such application under the new scheme, if and when made, and pay the lump sum ex gratia amount due in terms of that ::: Downloaded on - 22/12/2022 20:32:04 :::CIS 14 scheme, to the beneficiaries, within four months of the receipt of the application.
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11 Similar reiteration of law can be found in Punjab State Power Corporation Limited vs. Nirval Singh (2019) 6 SCC 774 and a very recent judgment of the Hon'ble Supreme Court in Civil Appeal No. 5111/2022, titled as Central Bank of India vs. Nitin, decided on 3.8.2022, wherein ratio laid down in Raj Kumar's case (supra) was reiterated in the following terms:
22. As held by this court in State Bank of India vs. Raj Kumar reported in (2010) 11 SCC 661 cited by Mr. Debal Kumar Banerji, learned senior counsel appearing on behalf of the appellant-Bank, the claim for compassionate appointment is traceable only to the Scheme framed by the employer for such employment, and there is no right whatsoever outside such scheme. There could be no automatic appointment merely on application. The respondent-writ petitioner did not have any special claim or special right to employment as dependent family member of the retired employee.
12 Since there was no scheme, policy, rule or regulation in the respondents-Board at the relevant time, on the basis of which the appellant could have claimed the compassionate appointment, therefore, the learned writ Court has committed no ::: Downloaded on - 22/12/2022 20:32:04 :::CIS 15 error while dismissing the writ petition otherwise, which was otherwise without merit.
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13 In view of the aforesaid discussions and for the reasons stated hereinabove, we find no merit in the instant appeal and the same is accordingly dismissed, so also the pending application(s), if any, leaving the parties to bear their own costs.
(Tarlok Singh Chauhan) Judge (Virender Singh) 20.12.2022 Judge (pankaj) ::: Downloaded on - 22/12/2022 20:32:04 :::CIS