SLP(C)No.30335 of 2017               State Bank of India and ors.  Vs.  Sheo Shankar Tewari                                       1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL)NO.30335 OF 2017

STATE BANK OF INDIA & ORS. ……Petitioners

VERSUS

SHEO SHANKAR TEWARI ..…. Respondent

O  R  D  E  R

Uday Umesh Lalit, J.

1. The father of the respondent was working with the petitioner-bank and

while in service died on 11.11.2004.  A request was made for appointment on

compassionate grounds by the respondent on 03.03.2005.  As on that date,

compassionate appointment could be granted to the dependents of employees

dying in harness.  However, instructions were issued by the Government of

India, Ministry of Finance on 14.07.2004 to frame an appropriate scheme for

payment of monetary assistance in lieu of compassionate appointment.  Vide

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its communication dated 31.07.2004 the IBA1 had advised the banks to frame

their own schemes based on said model.  

2. Before  the  application  of  the  respondent  could  be  considered,  the

petitioner-bank  formally  approved  a  scheme  for  payment  of  ex-gratia

lumpsum  amount  in  lieu  of  compassionate  appointment  vide  its  scheme

circulated  on  04.08.2005.   The  relevant  clause  namely  Clause  15(vi)

provided:- “With  effect  from  the  date  the  “SBI  Scheme  for payment of ex-gratia lumpsum amount” comes into force  the  bank’s  scheme  of  compassionate appointments  shall  be  deemed abolished/withdrawn and no request for compassionate appointment shall be entertained or considered by the bank under any circumstance.”

3. According to the petitioner-bank, the application of the respondent for

compassionate  appointment  could  not  therefore  be  considered.   The

challenge to the action on part  of  the bank by way of Writ Petition was

accepted by the Single Judge and the Division Bench of  the High Court

which decisions are presently in appeal.  4. The learned counsel for the petitioner-bank relied upon the decision of

this  Court  in  State  Bank  of  India  and  another  vs.   Raj  Kumar2 and

particularly paragraphs 2, 8, 12 and 13 which are to the following effect:- 1 Indian Banks’ Association 2 (2010) 11 SCC 661

             SLP(C)No.30335 of 2017               State Bank of India and ors.  Vs.  Sheo Shankar Tewari                                       3

“2. The  respondent’s  father  employed  as  a Messenger in the appellant Bank, died on 1-10-2004. The respondent’s mother made applications dated 6- 6-2005  and  14-6-2005  requesting  for  his appointment  on  compassionate  grounds.  When the applications were being processed and verified, the Compassionate  Appointment  Scheme  was substituted by the “SBI Scheme for payment of ex gratia lump sum amount” with effect from 4-8-2005. The  new  Scheme  abolished  the  old  Scheme  for compassionate  appointments  and  instead  provided for payment of an ex gratia lump sum amount as per its terms.

…  … …

8. 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

             SLP(C)No.30335 of 2017               State Bank of India and ors.  Vs.  Sheo Shankar Tewari                                       4

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, up to 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.

13. 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.”

5. He also relied upon the decision of this Court in MGB Gramin Bank

vs.  Chakrawarti Singh3.  Paragraphs 2, 15 and 16 of said decision are as

under:

3 (2014) 13 SCC 583

             SLP(C)No.30335 of 2017               State Bank of India and ors.  Vs.  Sheo Shankar Tewari                                       5

“2. The  facts  and circumstances  giving rise  to  this appeal are that: the father of the respondent who was working as a Class III employee with the appellant Bank  died  on  19-4-2006  while  in  harness.  The respondent applied for compassionate appointment on 12-5-2006.  During  the  pendency  of  the  application filed by the respondent,  a  new scheme dated 12-6- 2006  came  into  force  with  effect  from  6-10-2006. Clause  14  thereof  provides  that  all  applications pending on the date of commencement of the scheme shall be considered for grant of ex gratia payment to the family instead of compassionate appointment.

… … …

15. The Court considered various aspects of service jurisprudence and came to the conclusion that as the appointment  on  compassionate  ground  may  not  be claimed as a matter of right nor an applicant becomes entitled  automatically  for  appointment,  rather  it depends on various other circumstances i.e. eligibility and  financial  conditions  of  the  family,  etc.  the application has to be considered in accordance with the scheme. In case the scheme does not create any legal right, a candidate cannot claim that his case is to be considered as per the scheme existing on the date the  cause  of  action  had  arisen  i.e.  death  of  the incumbent on the post. In  SBI  vs.  Raj Kumar2, this Court held that in such a situation, the case under the new scheme has to be considered.

16. In view of the above position, the reasoning given by  the  learned  Single  Judge4 as  well  as  by  the Division Bench5 is not sustainable in the eye of the

4 Chakrawarti Singh vs.  Marwar Ganganagar Bikaner Gramin Bank, Civil Writ Petition No.7869 of 2008, decided on 27.7.2009 (Raj.) 5 MGB Gramin Bank vs.  Chakrawarti Singh, Civil Special Appeal (W)No.798 of 2009, decided on 27.1.2010 (Raj.)

             SLP(C)No.30335 of 2017               State Bank of India and ors.  Vs.  Sheo Shankar Tewari                                       6

law.  The  appeal  is  allowed  and  the  impugned judgments4 & 5 of the High Court are set aside.”

6. On  the  other  hand,  reliance  was  placed  by  the  learned  counsel

appearing for the respondent on the decision in Canara Bank and another

vs.  M. Mahesh Kumar6.  Paragraphs 11, 12, 17 and 22 of this decision are:-

“11. 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 HO Circular  No. 35 of  2005 dated 14-2-2005. According to appellant Bank, as on date of consideration  of  the  application  for  compassionate 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  2005  Scheme  applies  to  all  pending applications  for  appointment  on  compassionate ground, the 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.

12. 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.

6 (2015) 7 SCC 412

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… … …

17. Applying these principles to the case in hand, as discussed earlier, the respondent’s father died on 10- 10-1998  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  8-5-1993  which  was  in force  at  that  time.  The appellant  Bank rejected  the respondent’s claim on 30-6-1999 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  the  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 Circular No. 154 of 1993 dated 8-5-1993 was in force. Thus, as per the judgment referred in  SBI vs. Jaspal Kaur case7, 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.

… … …

22. 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.”

7 (2007) 9 SCC 571

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7. In these decisions, the original scheme under which appointment on

compassionate grounds could be made, was substituted by one under which

only  ex  gratia  payment  would  be  made  over  to  the  dependants.   The

decisions relied upon by the petitioner proceed on the premise that there is

no vested right to have the matter considered under the former scheme and

the  governing  scheme  would  be  one  which  was  in  force  when  the

applications came up for  consideration.   On the other  hand, the decision

relied upon by the respondent proceeds on a different principle and stipulates

that the governing scheme would be the former scheme and any subsequent

that came into force after the claim was raised would not be applicable.  The

decision of this Court in Canara Bank6 did notice the earlier two decisions

in State Bank of India2 and MGB Gramin Bank 3.

8. All the aforesaid three decisions as well as one in Jaspal Kaur7 were

rendered by Benches of two Hon’ble Judges of this Court.   

9. The principles emanating from these two lines of  decisions,  in our

considered  view  are  not  consistent  and  do  not  reconcile.   The  matter

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therefore requires consideration by a larger Bench of at least three Hon’ble

Judges of this Court.

10. We, therefore,  request  the Registry to place the papers of this case

before the Hon’ble the Chief Justice of India for constituting a Bench of

appropriate strength to dispose of the present petition.

11. Ordered accordingly.

………..…..……..……J.                                                                                (Uday Umesh Lalit)

..………….……………J.                                 (Indu Malhotra)

New Delhi, February 8, 2019