REPORTABLE

IN THE SUPREME COURT OF INDIA CIVILAPPELLATE JURISDICTION

CIVIL APPEAL NO.2798 OF 2010

INDIAN BANK & ORS.        … Appellants

VERSUS

PROMILA & ANR.        …Respondents

J U D G M E N T

SANJAY KISHAN KAUL, J.

1. One  Jagdish  Raj,  husband  of  respondent  No.1  and  father  of

respondent  No.2,  was  appointed  as  a  Clerk-cum-Shroff  in  the  appellant-

Bank, where he continued to work till his unfortunate demise on 15.1.2004.

He was drawing a gross monthly salary of Rs.16,486.60 at the time of his

demise.  Consequent to his death, the benefits available for the family of

Jagdish Raj were calculated and sanctioned to the tune of Rs.5,45,872, but

on  account  of  deductions  for  staff  housing  and  vehicle  loans,  post

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adjustment,  a net  payment of Rs.2,99,672 was made to the family,  apart

from the grant of a monthly pension of Rs.5,574.12.  An issue has been

raised about the amount being paid less to the family of Jagdish Raj, but that

has really not been debated before us.

2. Late  Shri  Jagdish  Raj  was  survived  by  his  wife  and  three  minor

children.   As  it  transpires,  respondent  No.1  was  already  employed  and

earning a salary at the time of the demise of her husband, which information

came to  the  knowledge  of  the  appellant-Bank,  later.   The cause  for  the

present  dispute  arises  from  an  application  made  on  behalf  of  the  son

(respondent No.2 herein) seeking compassionate employment on account of

demise  of  Shri  Jagdish  Raj.   We  may  add  at  the  threshold  that  this

application was made on 24.1.2004, on which date the son was a minor.

Needless to say that any such request for compassionate employment had to

be in terms of the prevalent scheme at  that  time.  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

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&  Anr.  v.  M.  Mahesh  Kumar,1qua what  would  be  the  cut-off  date  for

application of such scheme.  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 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.   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.

3. On the relevant scheme being placed before us, what emerges is that

vide Circular No.56/79, a scheme was brought into force for compassionate

appointment  on  4.4.1979.   This  is  the  scheme which was  applicable  on

1(2015) 7 SCC 412

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15.1.2004, i.e. on the date of the death of Shri Jagdish Raj.  A provision was

made for compassionate appointment, but subject to the terms & conditions

of the scheme.  Para 7 of the scheme reads as under:

“7. According to an agreement with the Union, the dependant will either be paid gratuity as if the deceased employee has served the full term of service, which will be calculated as per gratuity rules on the basis of his/her last drawn pay at the time of his/her death or given the option for appropriate employment for one dependent subject to the rules framed for appointment under compassionate grounds.  It is therefore,  obvious that  appointments  under compassionate  grounds will  be  open  only  to  dependents  who  do  not  opt  for  payment  of gratuity for the full term of service of the employee who died while in service.”

The aforesaid paragraph, thus, makes it clear that either gratuity or

compassionate appointment can be availed of by the dependents.  The result

is that if the dependents opted for payment of gratuity for the term of service

of the employee who died while in service, no compassionate appointment

could be granted.  The admitted position is that the benefit of gratuity was

availed of by the dependents in the present case.

4. Another relevant paragraph of the scheme is para 8, which reads as

under:

“8.  No  person  or  dependent  can  claim,  as  a  matter  of  right,

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employment in the Bank under this Scheme and appointments will be considered  purely  at  the  sole  discretion  of  the  Bank.   The  Bank reserves  to  itself  the  right  to  modify,  suspend,  or  withdraw  the scheme at any time at its sole discretion and the Bank’s decision in this regard will be final and cannot be called in question.”

The aforesaid paragraph makes the consideration for appointment on

compassionate grounds at the discretion of the Bank, and not as a matter of

right.   This really only emphasizes the settled position of law, discussed

aforesaid.

5. A new Scheme was  promulgated  on 5.11.1985,  but  para  4  of  the

Scheme clarifies as under:

“the norms prescribed under scheme for appointment in the Bank of a dependent  of  a  confirmed  employee  who  dies  while  in  service remains unchanged.”

Thus, though this may be a new Scheme, it, in effect, continued the

older Scheme, and that is the reason the terms of that Scheme applied on the

date of death of Shri Jagdish Raj, on 15.1.2004.

6. The  first  communication  was  addressed  by  respondent  No.1,  on

24.1.2004,  to  the  CMD  of  the  appellant-Bank,  seeking  compassionate

appointment for her son, respondent No.2.  The aforesaid arrangement, thus

being applicable even at that time.

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7. A development  post  the  demise,  and  this  application,  was  a  new

Scheme being brought into force through a Board meeting of the appellant-

Bank  w.e.f.  27.4.2004,  by  way  of  Circular  No.  PRNL/09/2004-05,  in

supersession of the previous Scheme.  However, the qualification for such

Scheme was the death of an employee on account of injury sustained while

performing official duty, with a second condition that the monthly income

of the family (including terminal benefits,  insurance claims, investments,

etc. as well as pension and spousal income) was less than 60% of the last

drawn gross  salary,  net  of  taxes,  of  the deceased employee and that  the

application for such compassionate appointment had to be submitted within

three (3) months from the demise of such deceased employee.  There was

also an  option to  provide  ex gratia compensation with the  same second

qualification  as  aforesaid,  if  such  application  is  made  within  three  (3)

months from the demise of the deceased employee.  The Scheme also refers

to a lumpsum compensation, even where this 60% bar is crossed, and for

Clerks like Shri Jagdish Raj, the amount specified is Rs.2 lakh.

8. The  appellant-Bank,  thus,  in  response  to  the  application  for

compassionate  appointment,  sent  a  communication  to  respondent  No.1,

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asking her to submit a fresh application under the new Scheme within a

month,  i.e.,  by  9.8.2004.   The  intent,  really,  was  that  only  cash

compensation  could  be  made  available.   This  period,  for  tendering  an

application seeking cash compensation, was further extended repeatedly, but

it appears that the respondents did not apply for the same as they appeared

to be only interested in compassionate appointment.

9. A  Circular  No.  PRNL/72/2005-06  dated  30.8.2005  was  issued

whereby  the  benefit  of  compassionate  appointment  was  denied  to  a

dependent  of  an  employee  who  died  in  harness.   Thus,  only  cash

compensation  was  the  benefit  which  would  accrue.   The  norm of  60%

eligibility criterion was still made applicable and the application had to be

preferred within six (6) months from demise.  This Scheme came into force

from 10.8.2005.

10. Respondent  No.1  made  available  her  gross  salary  declaration  of

Rs.15,912 only on 17.2.2006, which crossed the benchmark of 60% and,

thus,  the  respondents  were  informed  vide letters  dated  10.5.2006  and

30.6.2006 that even cash compensation was not available to the family, and

that there could be no question of compassionate appointment.

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11. It is in the aforesaid circumstances that the respondents filed CWP

No.17105/2006  on  27.10.2006,  seeking  consideration  of  compassionate

appointment under the 2004 Scheme, upon respondent No.2 attaining age of

majority.  Ex gratia benefits, which were held back, were also sought, along

with interest.

12. The High Court  of  Punjab & Haryana  vide impugned order  dated

11.8.2008, granted Rs.2 lakh ex gratia payment, while leaving it open to the

respondents  to  make  an  appropriate  application  regarding  any  terminal

benefits,  if  not  paid.   This  Rs.2  lakh  benefit  is  in  consonance  with  the

subsequent  Schemes of  2004 and 2005 which had come into force,  and

appears to have been so done more out of sympathy than any other factor.

13. The  appellant-Bank aggrieved by this  order  filed  a  Special  Leave

Petition and interim order of stay was granted on 16.1.2009.  Leave was

granted subsequently and the interim order was made absolute.

14. We have examined the aforesaid factual matrix and the contentions

raised by learned counsel for the parties.

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15. The question of applicability of any subsequent Scheme really does

not apply in view of the judgment of this Court in Canara Bank2.  Thus, it

would not  be  appropriate  to  examine the case  of  the  respondents  in  the

context of subsequent Schemes, but only in the context of the Scheme of

4.4.1979, the terms of which continued to be applicable even as per the new

Scheme of 5.11.1985, i.e. the Scheme applicable to the respondents.  There

is no provision in this Scheme for any  ex gratia payment.  The option of

compassionate appointment was available only if the full amount of gratuity

was not taken,  something which was done.   Thus,  having taken the full

amount of gratuity, the option of compassionate appointment really was not

available to the respondents.

16. We may also notice that though the subsequent Schemes were not

applicable, even if benefit was sought to be given of those Schemes, initial

non-disclosure  and  subsequent  disclosure  by  respondent  No.1,  of  her

employment and her emoluments would disentitle her under those Schemes,

too.  Thus, when the appellant was calling upon the respondents to apply

under  the  subsequent  Schemes,  that  could  have  been  beneficial  to  the

2(supra)

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respondents  only  if  they were  entitled  to  any of  the  benefits  under  that

Scheme.  That could not happen because the benchmark provided in those

subsequent  Schemes  took  the  emoluments  of  respondents  beyond  the

prescribed  limit,  so  as  to  disentitle  them  from  both,  compassionate

employment and ex gratia payment.

17. We have to keep in mind the basic principles applicable to the cases

of compassionate employment, i.e., succor being provided at the stage of

unfortunate demise, coupled with compassionate employment not being an

alternate method of public employment.  If these factors are kept in mind, it

would be noticed that the respondents had the wherewithal at the relevant

stage of time, as per the norms, to deal with the unfortunate situation which

they were faced with.  Thus, looked under any Schemes, the respondents

cannot claim benefit, though, as clarified aforesaid, it is only the relevant

Scheme prevalent on the date of demise of the employee, which could have

been considered to be applicable, in view of the judgment of this Court in

Canara Bank3.  It is not for the Courts to substitute a Scheme or add or

subtract  from the  terms  thereof  in  judicial  review,  as  has  been  recently

emphasized by this Court in State of Himachal Pradesh & Anr. v. Parkash

3(supra)

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Chand4.

18. We may have sympathy with the respondents about the predicament

they faced on the  demise  of  Shri  Jagdish  Raj,  but  then sympathy alone

cannot give remedy to the respondents, more so when the relevant benefits

available to the respondents have been granted by the appellant-Bank and

when respondent No.1, herself, was in employment having monthly income

above the benchmark.

19. We have, thus, no option but to reluctantly set aside the impugned

order and dismiss the writ petition originally filed by the respondents.

20. The appeal is accordingly allowed, leaving the parties to bear their

own costs.

...……………………………J. [Sanjay Kishan Kaul]

...……………………………J. [K.M. Joseph]

New Delhi. January 8, 2020.

4(2019) 4 SCC 285

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