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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.260/2008

CANARA BANK & ANR.      ..Appellants Versus

M. MAHESH KUMAR             ..Respondent

WITH

CIVIL APPEAL NO.266/2008

CHAIRMAN AND MANAGING DIRECTOR CANARA BANK & ORS.      ..Appellants

Versus SANTHA & ANR.           ..Respondents

AND

CIVIL APPEAL NO.267/2008

CHAIRMAN AND MANAGING DIRECTOR CANARA BANK & ORS.                 ..Appellants

Versus A.K. SHEEBA & ANR.   ..Respondents

J U D G M E N T

R. BANUMATHI, J  .

Common question of law falling for consideration in

these civil appeals is whether the dependant family members

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of the deceased employee of the appellant-Canara Bank were

entitled to seek compassionate appointment on the basis of

‘Dying in Harness Scheme’  which was passed Vide Circular

No.154/1993 w.e.f. 8.05.1993.  The claim is resisted by the

Canara Bank on the  ground that the financial condition of the

family members of the deceased employees is good and that

the Scheme dated 8.05.1993 has been replaced with scheme

dated 14.02.2005 (H. O. Circular No.35/2005) scrapping the

provision of  compassionate appointment  and in lieu thereof

introduced the new scheme of ex-gratia payment.  

2.   In Civil Appeal No.260/2008, the Division Bench

of the High Court of Kerala at Ernakulam vide its Order dated

24.08.2006 in Writ Appeal No. 1313/2003 (B) titled as Canara

Bank  &  Anr.  vs.  M.  Mahesh  Kumar  directed  the  bank  to

reconsider the claim of the claimant- M. Mahesh Kumar within

two  months  from  the  date  of  order.  Further,  due  to  the

pendency of SLP against the decision dated 24.08.2006 in Writ

Appeal  No.1313/2003(B),  the  Division  Bench  of  the  High

Court  of  Kerala  also  disposed  off  the  Writ  Appeal

Nos.2333/2006  and  2335/2006  vide  common  order  dated

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11.12.2006 and directed the claimants to approach this Court.

Assailing the aforesaid three decisions of the Division Bench of

the  Kerala  High  Court,  the  appellant-bank  has  filed  the

instant appeals.   

3. For  convenience,  Civil  Appeal  No.260/2008  is

taken as a lead case.  Brief facts which led to the filing of the

appeal  are  as  follows:-  Respondent  applied  to  the

appellant-bank on 30.11.1998 claiming to be considered for

compassionate appointment on account of death of his father,

a  clerk  in  the  appellant-bank  who  while  on  duty  died  on

10.10.1998.  Respondent had applied for the compassionate

appointment on account of  ‘Dying in Harness Scheme’  with

effect  from 8.05.1993 then  in  vogue  in  the  appellant-bank.

The bank vide its communication dated 30.06.1999 rejected

the  claim  of  the  respondent  on  the  ground  that  the

respondent’s  family  financial  position  does  not  show  any

indigent circumstances warranting to provide employment on

compassionate  ground.  The  respondent  gave  his

representation to the General Manager of the appellant-bank

and  several  other  representations  for  reconsideration of  his

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claim;  but  nothing  fruitful  happened  in  consideration  of

respondent’s  claim  for  compassionate  appointment.

Thereafter, respondent filed O.P. No.21630/2002 (Y) before the

High Court of Kerala, Ernakulam seeking to quash the Ext.P4

and  direction  to  the  appellant-bank  to  appoint  him as  per

‘Dying in Harness Scheme’ then in force in the appellant-bank.

The  learned  Single  Judge  of  the  High Court  vide  judgment

dated  30.05.2003  allowed  the  Original  Petition  of  the

respondent  herein  and  quashed  Ext.P4  and  directed  the

appellant-bank to reconsider the claim of the respondent for

appointment in accordance with law within two months from

the  date  of  receipt  of  copy  of  judgment.  Appellant-bank

assailed  the  decision  of  the  learned  Single  Judge  in  Writ

Appeal No.1313/2003 (B) and the Division Bench upholding

the order of the Single Judge dismissed the writ appeal.  The

appellant-bank has filed this appeal assailing the correctness

of the above order.

4. Learned counsel for the appellant-bank contended

that consideration for appointment on compassionate ground

is contrary to Articles 14 and 16 of the Constitution of India

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and is only in the nature of concession and, therefore, it does

not create a vested right in favour of the claimant/respondent.

It  was  submitted  that  ‘Dying  in  Harness  Scheme’  is  a

non-statutory scheme and is in the form of a concession and it

does  not  create  a  vested  right  in  favour  of  the

claimant/respondent  to  be  enforced  through  a  writ  of

mandamus.  It was further submitted that the compassionate

appointment  is  justified  when  it  is  granted  to  provide

immediate succour to the deceased-employee and cannot be

granted on the  passage of  time and in all  these  cases,  the

concerned  employee  died  about  two  decades  ago  and,

therefore,  the  High Court  was  not  justified  in  directing  the

appellant-bank to reconsider the claim of the respondent for

compassionate  appointment.   In  support  of  his  contention,

learned  counsel  for  the  appellant  relied  upon  number  of

judgments:  Umesh Kumar Nagpal  vs.  State  of  Haryana And

Ors.,  (1994)  4  SCC  138; Steel  Authority  of  India  Ltd.  vs.

Madhusudan Das & Ors.,  (2008) 15 SCC 560; Union of India

& Anr. vs. B. Kishore, (2011) 4 SCALE 298; State of Haryana

vs.   Naresh Kumar Bali,  (1994)  4 SCC 448;  State  Bank of

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India & Ors.  vs.  Jaspal Kaur,  (2007) 9 SCC 571 and  State

Bank of India & Anr. v. Raj Kumar, (2010) 11 SCC 661.

5.  Per  contra,  learned  counsel  for  the  respondent

contends  that  the  order  was  passed  by  the  appellant-bank

without considering the facts that is size of the respondent’s

family/employment status of his family members and sources

of their income, liabilities and expenses and the decision of the

bank rejecting the case of the respondent for compassionate

appointment  is  arbitrary.    Placing  reliance  upon  Jaspal

Kaur’s case (supra) and other decisions, it was submitted that

the case of the respondent ought to have been considered in

the light of the Scheme ‘Dying in Harness Scheme’ which was

then in vogue.  The respondent averred that the payment of

terminal  benefits  cannot be taken as a ground for  rejecting

employment under the ‘Dying in Harness Scheme’.

6. We have considered the rival contentions of both the

parties and perused the impugned judgments and the material

on record.

7. Law with regard to employment on compassionate

ground for dependant of a deceased employee is well settled.

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In  Sushma  Gosain  &  Ors.  vs.  Union  of India  &  Ors.,

(1989) 4 SCC 468,  this Court held as thus:

“9. We consider that it must be stated unequivocally that in all  claims for appointment on compassionate grounds, there should  not  be  any  delay  in  appointment.  The  purpose  of providing  appointment  on  compassionate  ground  is  to mitigate the hardship due to death of the bread earner in the family.  Such  appointment  should,  therefore,  be  provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for  appointment  supernumerary  post  should  be  created  to accommodate the applicant.”

The settled law which has been  reiterated in various cases

has been  succinctly  elucidated  in  MGB Gramin Bank vs.

Chakrawarti  Singh,  (2014)  13  SCC  583,  wherein  it  was

observed that compassionate  appointment cannot be granted

as of  right and the application to be decided as expeditiously

as possible and held as under:-

“6. Every  appointment  to  public  office  must  be  made  by strictly adhering to the mandatory requirements of Articles 14 and  16  of  the  Constitution.  An  exception  by  providing employment on compassionate grounds has been carved out in order  to  remove  the  financial  constraints  on  the  bereaved family,  which  has  lost  its  breadearner.  Mere  death  of  a government employee in harness does not entitle the family to claim compassionate  employment.  The competent  authority has to examine the financial  condition of the family of  the deceased employee and it is only if it is satisfied that without providing employment, the family will not be able to meet the crisis, that a job is to be offered to the eligible member of the family. More so, the person claiming such appointment must possess required eligibility for the post.  The consistent view that  has  been  taken  by  the  Court  is  that  compassionate

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employment cannot be claimed as a matter of right, as it is not a vested right. The Court should not stretch the provision by  liberal  interpretation  beyond  permissible  limits  on humanitarian  grounds.  Such  appointment  should,  therefore, be provided immediately to redeem the family in distress. It is improper to keep such a case pending for years.” (Underlining added)

8. The  above  consistent  view  has  been reiterated  in

various judgments by this Court in  Umesh Kumar Nagpal  vs.

State of Haryana & Ors.  (1994) 4 SCC 138, State of Manipur

vs.  Md. Rajaodin,  (2003) 7 SCC 511,  Steel Authority of India

Ltd. vs.  Madhusudan Das & Ors.,  (2008)  15 SCC 560 and

Sanjay Kumar  vs. State  of   Bihar & Ors., (2000) 7 SCC 192.

9. Before  adverting  to  the  arguments  of  the  learned

counsel for the parties, it is necessary to examine the scope of

the Scheme dated 8.05.1993 vide Circular No.154/1993 for

“compassionate appointment”.   The object of the Scheme  is to

help  dependants  of  employees  of  Canara  Bank  who  die  or

become  totally  and  permanently  disabled  while  in  harness

and  to  overcome  the  immediate  financial  difficulties  on

account  of  sudden stoppage of  the  main source  of  income.

The employment under the scheme will be considered only if

there are indigent circumstances necessitating employment to

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one of  the dependants  and the deceased employee’s  service

record is unblemished.  Mere eligibility will not vest a right for

claiming  employment.  As  per  para  3.1,  application  for

employment should be sought within 2½ years from the date

of death of the employees.  In para 3.2, it is stated that in case

of  the  dependant  of  the  deceased  employee  to  be  offered

appointment  is  a  minor,  the  bank  may  keep  the  offer  of

appointment open till  the minor  attains the age of  majority

provided a request is made to the bank by the family of the

deceased employee and the same may be considered subject to

rules prevailing at the time of consideration.

10. During  the  pendency  of  the  matter  before  the

Division  Bench,  Indian  Banks  Association  (for  short  ‘IBA’)

formulated a scheme based on the guidelines issued by the

Government of India.  As per the said Scheme, the banks have

scrapped  the  scheme  of  compassionate  appointment  and

introduced  the  new scheme of  ex-gratia  payment  in  lieu  of

compassionate  appointment  by  H.O.  Circular  No.35/2005

dated 14.02.2005.   According to appellant-Bank, as on date of

consideration  of  the  application  for  compassionate

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appointment,  there  was  no  policy  to  provide  compassionate

appointment under ‘Dying in Harness Scheme’.   It is therefore

the  contention  of  the  bank  that  the  new  scheme  of  2005

applies  to  all  pending  applications  for  appointment  on

compassionate  ground,  respondent’s  case  could  not  be

considered and as per the new Scheme, they are only entitled

to ex-gratia payment in lieu of compassionate appointment.  

11. The  main  question  falling  for  consideration  is

whether  the Scheme passed in 2005 providing for  ex-gratia

payment or the Scheme then in vogue in 1993 providing for

compassionate appointment is  applicable to the respondent.

Appellant-bank  has placed reliance upon the judgment of this

Court  in  Jaspal  Kaur’s  case (supra)  to  contend   that   the

respondent’s case cannot be considered on the basis of  ‘Dying

in  Harness  Scheme  1993’  when  the  new  Scheme  of  2005

providing for  ex-gratia  payment  had been put  in  place.   In

Jaspal Kaur’s case (supra), Sukhbir Inder Singh employee of

State  Bank  of  India,  Record  Assistant  (Cash  &  Accounts)

passed away on 1.08.1999.  Widow of the employee applied for

compassionate  appointment  in  State  Bank  of  India  on

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5.02.2000.   On  7.01.2002,  the  competent  authority  of  the

bank rejected the application of  Jaspal  Kaur in view of  the

Scheme vis-a-vis the financial position of the family.  Against

that decision of the competent authority, the respondent filed

writ petition before the Punjab and Haryana High Court which

has directed to consider the case of Jaspal Kaur by applying

the  Scheme  formulated  on  4.08.2005  when  her  application

was made in the year 2000.  In that factual matrix, this Court

has directed that dispute arising in the year 2000 cannot be

decided on the basis of a Scheme that was put in place much

after the dispute.  By perusal of the judgment in Jaspal Kaur’s

case, it is apparent that the judgment specifically states that

claim  of  compassionate  appointment  under  a  scheme  of  a

particular  year  cannot  be  decided  in  the  light  of  the

subsequent scheme that came into force much after the claim.

12. The same principle was reiterated by this Court in

the case of  Bhawani Prasad Sonkar vs. Union of India & Ors.,

(2011) 4  SCC 209,  wherein it  was  held  as under :-

“15.  Now, it is well settled that compassionate employment is given solely on humanitarian grounds with the sole object to provide immediate relief to the employee’s family to tide over

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the sudden financial crisis and cannot be claimed as a matter of right. Appointment based solely on descent is inimical to our constitutional scheme, and ordinarily public employment must be strictly on the basis of open invitation of applications and comparative merit, in consonance with Articles 14 and 16 of the Constitution of India. No other mode of appointment is permissible.  Nevertheless,  the  concept  of  compassionate appointment  has  been  recognised  as  an  exception  to  the general rule, carved out in the interest of justice, in certain exigencies, by way of a policy of an employer, which partakes the character of the service rules. That being so, it needs little emphasis that the scheme or the policy, as the case may be, is binding  both  on  the  employer  and  the  employee.  Being  an exception,  the  scheme  has  to  be  strictly  construed  and confined only to the purpose it seeks to achieve.  …… 17.  In  Umesh Kumar Nagpal v.  State of Haryana, (1994) 4 SCC  138,  while  emphasising  that  a  compassionate appointment cannot be claimed as a matter of  course or in posts above Classes III and IV, this Court had observed that: (SCC p. 140, para 2)

“2.  …The  whole  object  of  granting  compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family  a  post  much  less  a  post  for  post  held  by  the deceased. What is further, mere death of an employee in harness  does  not  entitle  his  family  to  such  source  of livelihood.  The  Government  or  the  public  authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Classes III and IV  are  the  lowest  posts  in  non-manual  and  manual categories  and  hence  they  alone  can  be offered  on compassionate  grounds,  the  object  being  to  relieve  the family, of the financial destitution and to help it get over the  emergency.  The  provision  of  employment  in  such lowest  posts  by  making  an  exception  to  the  rule  is justifiable  and valid  since  it  is  not  discriminatory.  The favourable  treatment  given  to  such  dependant  of  the deceased employee in such posts has a rational nexus with the  object  sought  to  be  achieved  viz.  relief  against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be

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remembered  in  this  connection  that  as  against  the destitute  family  of  the  deceased  there  are  millions  of other  families  which are  equally,  if  not  more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by  the  erstwhile  employment  which  are  suddenly upturned.”

…….. 20. Thus,  while  considering  a  claim  for  employment  on compassionate ground, the following factors have to be borne in mind:

(i)  Compassionate  employment  cannot  be  made  in  the absence of rules or regulations issued by the Government or  a  public  authority.  The  request  is  to  be  considered strictly in accordance with the governing scheme, and no discretion  as  such  is  left  with  any  authority  to  make compassionate appointment dehors the scheme. (ii) An application for compassionate employment must be preferred without undue delay and has to be considered within a reasonable period of time. (iii) An appointment on compassionate ground is to meet the sudden crisis occurring in the family on account of the death or medical invalidation of the breadwinner while in service. Therefore, compassionate employment cannot be  granted  as  a  matter  of  course  by  way  of  largesse irrespective  of  the  financial  condition  of  the deceased/incapacitated employee’s family at the time of his death or incapacity, as the case may be. (iv) Compassionate employment is permissible only to one of  the  dependants  of  the  deceased/incapacitated employee viz. parents, spouse, son or daughter and not to all relatives, and such appointments should be only to the lowest category that is Class III and IV posts.” (Underlining added)

13. Applying these principles  to  the case in  hand,  as

discussed  earlier,  respondent’s  father  died  on  10.10.1998

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while he was serving as a clerk in the appellant-bank and the

respondent applied timely for compassionate appointment as

per the scheme ‘Dying in Harness Scheme’ dated 8.05.1993

which was in force at that time.  The appellant-bank rejected

the respondent’s claim on 30.06.1999 recording that there are

no  indigent  circumstances  for  providing  employment  to  the

respondent.  Again on 7.11.2001, the appellant-bank sought

for  particulars in  connection with the issue of  respondent’s

employment.  In the light of the principles laid down in the

above  decisions,  the  cause  of  action  to  be  considered  for

compassionate  appointment  arose  when  the  Circular

No.154/1993 dated 8.05.1993 was in force. Thus, as per the

judgment referred in Jaspal Kaur’s case, the claim cannot be

decided as per 2005 Scheme providing for ex-gratia payment.

The  Circular  dated  14.2.2005  being  an  administrative  or

executive order cannot have retrospective effect so as to take

away the right accrued to the respondent as per circular of

1993.  

14.  It  is  also  pertinent  to  note  that  2005  Scheme

providing only for ex-gratia payment in lieu of compassionate

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appointment stands superseded by the Scheme of 2014 which

has  revived  the  scheme  providing  for  compassionate

appointment.   As  on  date,  now  the  scheme  in  force  is  to

provide  compassionate  appointment.  Under  these

circumstances,  the  appellant-bank  is  not  justified  in

contending  that  the  application  for  compassionate

appointment of the respondent cannot be considered in view of

passage of time.

15. Insofar as the contention of the appellant-bank that

since  the  respondent’s  family  is  getting  family  pension and

also  obtained  the  terminal  benefits,  in  our  view,  is  of  no

consequence in considering the application for compassionate

appointment.  Clause 3.2 of 1993 Scheme says that in case

the dependant of deceased employee to be offered appointment

is a minor, the bank may keep the offer of appointment open

till the minor attains the age of majority.  This would indicate

that  granting  of  terminal  benefits  is  of  no  consequence

because even if terminal benefit is given, if the applicant is a

minor,  the  bank  would  keep  the  appointment  open  till  the

minor attains the majority.   

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16. In Balbir Kaur & Anr. vs. Steel Authority of India Ltd.

& Ors., (2000) 6 SCC 493, while dealing with the application

made by the widow for employment on compassionate ground

applicable  to the Steel  Authority  of  India,  contention raised

was that since she is entitled to get the benefit under Family

Benefit Scheme assuring monthly payment to the family of the

deceased  employee,  the  request  for  compassionate

appointment cannot be acceded to.  Rejecting that contention

in paragraph (13), this Court held as under:-

“13. ….But in our view this Family Benefit Scheme cannot in any  way  be  equated  with  the  benefit  of  compassionate appointments. The sudden jerk in the family by reason of the death  of  the  breadearner  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 breadearner 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 breadearner, but that would undoubtedly bring some solace to the situation.”

Referring to Steel Authority of India Ltd.’s case, High Court has

rightly held that  the grant of  family pension or  payment of

terminal  benefits  cannot  be  treated  as  a  substitute  for

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providing  employment  assistance.  The  High  Court  also

observed  that  it  is  not  the  case  of  the  bank  that  the

respondents’ family is having any other income to negate their

claim for appointment on compassionate ground.

17. Considering  the  scope  of  the  Scheme  ‘Dying  in

Harness  Scheme  1993’  then  in  force  and  the  facts  and

circumstances of the case, the High Court rightly directed the

appellant-bank to reconsider the claim of the respondent for

compassionate appointment in accordance with law and as per

the  Scheme (1993)  then in  existence.   We  do  not  find  any

reason warranting interference.

18. So far as the cases in Civil Appeal No.266/2008 and

Civil Appeal No.267/2008 are concerned, they are similar and

those  respondents  are  similarly  placed  and  the  appeals

preferred  by  the  bank  are  liable  to  be  dismissed.  The

appellant-bank  is  directed  to  consider  the  case  of  the

respondents in Civil Appeal Nos. 266/2008 and 267/2008.

19. In  the  result,  all  the  appeals  preferred  by  the

appellant-bank  are  dismissed  and  the  appellant  bank  is

directed  to  consider  the  case  of  the  respondents  for

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compassionate appointment as per the Scheme which was in

vogue at the time of death of the concerned employee.  In the

facts and circumstances of the case,  we make no order as to

costs.

………………………J. (T.S. Thakur)

………………………J.    (R. Banumathi)

New Delhi; May 15, 2015

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