REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  5224      OF 2008 ARISING OUT OF

SPECIAL LEAVE PETITION (CIVIL) NO. 8765 OF 2007

GENERAL MANAGER, STATE BANK OF INDIA & ORS. … APPELLANTS

VERSUS

ANJU JAIN … RESPONDENT

J U D G M E N T C.K. THAKKER, J.

1. Leave granted.

2. The  present  appeal  is  filed  by  the

General  Manager,  State  Bank  of  India  (‘the

State  Bank’  for  short)  and  others  against

judgment and order passed by a Single Judge of

the High Court of Judicature at Allahabad on

March 2, 2006 in C.M.W.P. No. 45006 of 2001 and

confirmed by the Division Bench of the said

Court on April 25, 2007 in Special Appeal No.

390 of 2006. By the said order, the High Court

allowed the petition filed by Smt. Anju Jain,

writ-petitioner  (respondent  herein)  and

directed  the  State  Bank  to  provide  her

appointment  on  compassionate  ground  on  the

death of her husband.

3. Shortly stated the facts of the case

are that Mr. Jain, husband of the respondent-

writ petitioner was working as Assistant with

the State Bank at Karhall Branch, Agra in the

State of U.P. In September, 1995, he was placed

under suspension and charge-sheeted for having

committed  gross  misconduct  of  embezzlement/

misappropriation.  Departmental  inquiry  was

instituted  against  him  wherein  he  was  found

guilty.  In  1996,  on  the  basis  of  findings

recorded by the Inquiry Officer and accepted by

the  Disciplinary  Authority,  major  punishment

was imposed on him by which his basic pay was

reduced by two stages and five annual future

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increments  were also  stopped with  cumulative

effect.  Husband  of  the  writ-petitioner,

however,  died  on  January  25,  2000  while  in

service in the State Bank.

4. The State Bank had framed a scheme for

appointment  on  compassionate  grounds  for

dependents  of  deceased  employees/employees

retired  on  medical  grounds  with  effect  from

January 01, 1979.  It was modified from time to

time.  At the relevant time, when the husband

of the writ-petitioner died (January 25, 2000),

the policy as amended with effect from January

01, 1998 was in force.

5. In  accordance  with  the  policy  of

giving  employment on  compassionate ground  to

dependents of a deceased employee, the writ-

petitioner,  as  the  widow  of  the  deceased

applied to the State Bank in March, 2000. The

competent authority of the Bank considered the

case of the writ petitioner and keeping in view

the  punishment  imposed  on  the  deceased

employee, it rejected the prayer of the writ

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petitioner  and  informed  her  that  no  such

appointment  could  be  given  to  her.  A

representation was made by the writ petitioner

but it was also rejected on July 16, 2001.

6. Aggrieved by the action of the State

Bank, the writ petitioner filed a petition in

the High Court by invoking Article 226 of the

Constitution. A Single Judge of the High Court,

after  referring  to  the  scheme  of  giving

appointment  on  compassionate  grounds  to

dependents  of  deceased  employees  and  also

considering  the case  of the  writ-petitioner,

allowed  the  petition  holding  that  the  writ

petitioner  was  entitled  to  the  benefit  of

appointment  on  compassionate  ground  as  the

dependent of the deceased employee.  The said

right, which had accrued in her favour, could

not be taken away by the State Bank only on the

ground of misconduct on the part of her husband

for which he was punished, observed the Single

Judge. Accordingly, a direction was issued by

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the  Single  Judge  to  appoint  the  writ

petitioner.

7. The State Bank, being aggrieved by the

said order, approached the Division Bench of

the High Court by filing intra-Court appeal but

the  Division  Bench  also  confirmed  the  order

passed  by  the  learned  Single  Judge  and

dismissed  the  appeal.  The  said  order  is

challenged in the present appeal.

8. Notice was issued on May 17, 2007 and

after  hearing  the  parties,  the  Registry  was

directed to place the matter for final hearing

on  May  01,  2008.  We  have  accordingly  heard

learned counsel for the parties.

9. The learned counsel for the appellant-

Bank contended that the orders passed by the

High Court are illegal, improper and contrary

to law. It was submitted that appointment on

compassionate ground is never considered to be

a right of a dependent of deceased employee. It

is  a  benefit  granted  to  a  dependent  of  an

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employee who dies in harness and is thus an

exception to  the  general  rule  of  ‘equality

clause’  guaranteed  by  Article  14  of  the

Constitution. Such appointment, hence, can only

be given in accordance with the policy adopted

or scheme framed by the employer.  

10. It  was  also  submitted  that  if  the

employee has committed misconduct for which he

was punished, the dependent of such employee

cannot  claim  the  benefit  of  appointment  on

compassionate ground. According to the counsel,

both the Courts were wholly wrong in holding

that  the  writ  petitioner  was  sought  to  be

punished for so called misdeeds of the deceased

employee. The counsel submitted that there was

no question of punishing the writ petitioner in

not  granting  appointment  on  compassionate

ground. The husband of the writ petitioner had

committed misconduct which was proved in the

inquiry  instituted  against  him  and  he  was

punished.  As  per  the  policy,  the  writ

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petitioner  cannot  claim  appointment  on

compassionate  ground.  There  was  no  accrued

right  in  favour  of  the  writ-petitioner.  The

order passed by the learned Single Judge and

confirmed  by  the  Division  Bench,  therefore,

deserves to be set aside.

11. Alternatively,  it  was  submitted  that

even if a dependent of the deceased employee is

held  eligible  to  get  an  appointment  on

compassionate ground, it is well settled law

that  mandamus  can  be  issued  against  the

employer limited to ordering him to consider

the case of such applicant. No direction can be

issued  to  appoint  the  writ-petitioner  on

compassionate ground. Even on that count, the

orders are liable to be set aside.

12. The  learned  counsel  for  the  writ

petitioner, on the other hand, supported the

order passed by the learned Single Judge and

confirmed  by  the  Division  Bench.  It  was

submitted that for the so called misconduct,

the husband of the writ petitioner was already

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punished. The matter, therefore, ended there.

Thereafter, it was not open to the Bank in the

light  of  the  policy  in  vogue  to  refuse

appointment on compassionate ground to deprive

the writ petitioner of such appointment. The

learned Single Judge was, therefore, right in

allowing the petition. And the Division Bench

was not wrong in not interfering with the said

order.

13. The counsel conceded that  normally, a

writ Court will direct the employer only to

consider the case of the dependent of deceased

employee  for  appointment  on  compassionate

ground.  He,  however,  submitted  that  on  the

facts  of  the  case,  the  only  ground  which

weighed with the Bank was that the husband of

the writ petitioner was punished and, hence,

his  widow  could  not  be  granted  the  benefit

under the scheme. If in the light of the said

fact, an order was passed to appoint the writ

petitioner,  it  could  not  be  said  that  by

issuing  such  direction,  the  learned  Single

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Judge  had  exceeded  his  jurisdiction.  The

Division  Bench  was,  therefore,  right  in

dismissing the appeal and no interference is

called  for  in  exercise  of  discretionary

jurisdiction  under  Article  136  of  the

Constitution.

14. Having heard learned counsel for the

parties, in our opinion, the appeal deserves to

be allowed by setting aside the order passed by

the learned Single Judge and confirmed by the

Division Bench.

15. It  is  an  admitted  fact  that  the

husband of the writ petitioner was serving with

the appellant Bank. He indulged in illegalities

and committed misconduct for which departmental

proceedings  were  initiated  against  him.  An

Inquiry Officer was appointed, who after giving

opportunity  of  hearing  to  the  deceased

employee, recorded a finding that the charges

levelled against the employee were proved. A

report was submitted by the Inquiry Officer to

the  Disciplinary  Authority.  The  Disciplinary

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Authority,  after following  the principles  of

natural  justice and  affording opportunity  of

hearing to the employee by supplying a copy of

the Inquiry Officer’s report, agreed with the

findings and imposed major penalty by reducing

basic pay of the delinquent by two stages and

stoppage of five annual future increments with

cumulative effect. The said order had attained

finality.

16. It  is  also  not  in  dispute  that  in

January,  2000,  the  employee  expired  and  an

application  for  appointment  on  compassionate

ground was submitted by his widow, the writ

petitioner. At that time, the appellant Bank

was governed by scheme which was in force with

effect from January 01, 1978 as amended up to

January 01, 1998.

17. The counsel for the State Bank invited

our attention to the scheme for appointment on

compassionate  grounds  for  dependents  of

deceased  employees.  As  per  the  policy,  such

benefit  could  be  granted  in  certain  cases.

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Para  6  of  the  scheme  laid  down  ‘Method  of

appointment’. Clause (d) of the said para dealt

with cases where disciplinary actions had been

taken against an employee.  The said clause

read as under:

(d) In cases where disciplinary action had been  taken  against  the  employee  or disciplinary proceedings were pending/ contemplated  against  him/her, appointment  of  a  dependent  on compassionate  grounds  may  be considered only after obtaining prior Government concurrence.

18. Since  the  disciplinary  proceedings

against  the  deceased  employee  culminated  in

major punishment and an application was made by

his widow for appointing her on compassionate

ground, the Bank referred the matter to the

Government of India. The matter was considered

by the Government but it was remitted to the

Bank  to  take  an  appropriate  decision  in

accordance with law.  

19. The Bank again considered the proposal

for appointment on compassionate ground of the

writ-petitioner  but  declined  to  grant  such

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benefit in view of punishment imposed on her

husband.

20. In para 3 of the communication, dated

January 29, 2001, the Managing Director of the

appellant Bank stated;

“In this connection, we have to advise that  although  our  scheme  for compassionate  appointments  does  not explicitly  state  that  the  deceased employee  should  have  had  unblemished service, this is implied: In view of the  gross  misconduct  of  late  D.K. Jain, the competent authority at this office has declined the proposal for compassionate appointment of his wife Smt. Anju Jain in the Bank”.

21. It was submitted on behalf of the Bank

that if the services of the employee were not

fully satisfactory and he was found guilty at

the departmental inquiry and was punished for

misconduct, it was open to the employer not to

grant  the  benefit  of  appointment  on

compassionate ground to the dependent of such

tainted employee after his death. If on that

ground,  an  order  is  passed,  it  cannot  be

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objected  on  the  ground  that  no  such  action

could have been taken.

22. In  our  opinion,  the  submission  is

well-founded and must be upheld. The learned

counsel for the State Bank also referred to the

scheme for compassionate appointments as framed

in 1979 and amended in 1998 which was further

amended  in  2003.  The  said  scheme  reads  as

“Scheme  for  compassionate  appointments

amendments  in  respect  of  cases  where  the

deceased employee/employees retired on health

grounds  had  been  involved  in  major/gross

misconduct”.

23.   Certain new provisions were added in

the  scheme for  compassionate appointments.  A

clause relating to ‘exclusions’ was inserted in

para 5 dealing with eligibility.  Clause (f)

relating to misconduct of an employee who died

in harness or retired on health ground which

was added, reads as under: (f) The dependents of an employee who has

died  or  who  has  retired  on  health grounds and whose service record was

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blemished  on  account  of  disciplinary action having been taken against him will  be  ineligible  for  compassionate appointment in the bank.

24. Bare reading of the above clause makes

it abundantly clear that the dependent of an

employee who had died or retired on medical

ground but whose service record was blemished

on account of disciplinary action having been

taken  against  him  will  not  be  considered

eligible for compassionate appointment in the

Bank.

25. As  observed  earlier,  the  writ

petitioner approached the High Court relying on

the  scheme  for  compassionate  appointment  of

1979 as amended with effect from January 01,

1998. It was submitted by her that her husband

was  an  employee  of  the  Bank,  departmental

proceedings were initiated and he was punished.

It was, thereafter, not open to the appellant

Bank  to  refuse  appointment  to  her  on

compassionate  ground  as  she  could  not  be

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punished  for  misdeeds  alleged  to  have  been

committed by her husband.

26. The  submission  weighed  with  the

learned Single Judge who allowed the petition

and observed;

“I have heard learned Counsel for the  parties  at  length  and  looked into the record of the case as well as  the  authorities  cited  by  the learned Counsel for the petitioner and I find that at the time when the  petitioner  applied  for compassionate  appointment  on  the death of her deceased husband, the earlier  Scheme  was  applicable  to the  petitioner's  case  and  the amended Scheme came into force from May, 2002. I am of the view that the inapplicable provisions of the clauses of the amended Scheme could not  be  taken  resort  to  by  the respondents  as  a  ground  to deprive/scuttle  the  rightful benefits  that  accrued  to  the petitioner only due to some charges of  misconduct  of  the  deceased husband of the petitioner for which he had already been penalized. No past  acts  of  misconduct  of  the employee who dies in harness can be taken  into  account  while considering  the  case  of  a  family member  for  employment  on compassionate ground, as it is not a benefit provided to the deceased employee  but  for  providing immediate succor to its dependents to  survive.  The  decision  of  the

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respondents is impermissible in the eye of law being in violation of the principles of natural justice”.

27. The  Single  Judge,  hence,  issued  the

following directions;

“In  the  result,  the  petition succeeds  and  is  allowed  and  the impugned  orders  dated  21.05.2001 and 16.07.2001 (Annexures No. 2 and 4 to the writ petition) are hereby quashed.   Accordingly  the respondent-Bank  is  directed  to provide  an  appointment  to  the petitioner on compassionate ground on  account  of  the  death  of  her husband, in accordance with law and in  terms  of  the  earlier  scheme, which  was  in  force  at  that  time within one month from the date a certified  copy  of  this  order  is placed  before  the  concerned authority-respondent  Bank.   There will be no order as to costs.”

28. When the appeal was filed by the State

Bank against the order passed by the Single

Judge, the Division Bench held that the learned

Single  Judge  was  right  in  issuing  necessary

directions  and  there  was  no  infirmity.  The

Division Bench observed;

“From  the  record,  it  is  evident that after the death of the said

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employee,  the  present  appellants have  also  changed  the  scheme  and introduced  clause  (1)  to appointment  on  compassionate grounds.  Past  misconduct  of  an employee who dies in harness should also  be  taken  into  consideration while  considering  the  application for compassionate employment of his dependent.  However,  the  said amendment  in  the  policy  does  not operate  retrospectively  and  the learned  Single  Judge  has  rightly held that past act of misconduct of the  said  employee  could  not  have been taken into consideration”.

29. We  are  of  the  view  that  both  the

Courts were wrong in granting relief to the

writ petitioner. Appointment on compassionate

ground is never considered a right of a person.

In fact, such appointment is violative of rule

of  equality  enshrined  and  guaranteed  under

Article 14 of the Constitution. As per settled

law, when any appointment is to be made in Government or semi-Government or in public

office, cases of all eligible candidates must

be considered alike. That is the mandate of

Article 14.  Normally, therefore, State or its

instrumentality  making  any  appointment  to

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public office, cannot ignore such mandate. At

the  same  time,  however,  in  certain

circumstances,  appointment  on  compassionate

ground of dependents of deceased employee is

considered inevitable so that the family of the

deceased employee may not starve. The primary

object of such scheme is to save the bereaved

family from sudden financial crisis occurring

due to death of sole bread earner. It is thus

an  exception to the general rule of equality

and not another independent and parallel source

of employment. 30. In  our  opinion,  therefore,  if

disciplinary  proceedings  have  been  initiated

against an employee and the charges levelled

against  such  employee  are  proved  and  he  is

punished, it is indeed a relevant consideration

for not extending the benefit to dependent of

such  employee  on  the  ground  that  he  was

punished. To us, it cannot be said that it is a

case of double jeopardy or a dual punishment.

Compassionate  appointment  is  really  a

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concession in favour of dependents of deceased

employee.  If  during  his  carrier,  he  had

committed  illegalities and  the misconduct  is

proved  and  he  is  punished,  obviously  his

dependents  cannot  claim  right to  the

employment.  With respect,  the learned  Single

Judge was wholly wrong in observing that such

an action would be violative of principles of

natural justice. 31. To us, the observation of the learned

Single Judge that  “no past acts of misconduct

of  the  employee  who  dies  in  harness  can  be

taken into account while considering the case

of  a  family  member  for  employment  on

compassionate ground” is not in consonance with

law. Past conduct of an employee is undoubtedly

an important consideration. We are also of the

view that the State Bank was right in rejecting

the prayer of the wife of the deceased employee

vide  its  letter  dated  January  29,  2001

observing  therein  that  “unblemished  service

record is implicit”.

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32. The  learned  counsel  for  the  Bank

invited our attention to a decision of the High

Court of Delhi in Suman Lata Yadav v. Union of

India & Anr.,  (2004) 113 DelLT 152. In that

case,  widow  of  a  deceased  employee  sought

employment  on  compassionate  ground  following

death of her husband. The request was declined.

The widow approached the High Court by filing a

writ petition. A counter affidavit was filed by

the  Union  of  India  stating  therein  that  on

account  of  disciplinary  proceedings  and

punishment  meted  out  to  the  deceased,  the

request  of  the  widow  for  appointment  on

compassionate ground was turned down.

33. It  was  contended  on  behalf  of  the

widow that the action of the Union of India was

illegal and appointment on compassionate ground

could not be denied.

34. Dismissing the petition and negativing

the argument on behalf of the widow, a Single

Judge of the High Court stated;

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“I  am  unable  to  accept  this submission. While it is true that the  prime  object  is  to  provide succour and immediate relief, yet the  deceased's  service  record  or the  factum  of  disciplinary proceedings  and  punishment  meted out to him, cannot be said to be an irrelevant factor. The possibility of  denial  of  compassionate appointment to the LRs of deceased on  account  of  deceased  employee having  a  tainted  service  record, would  serve  as  a  deterrent  to employees  from  indulging  in misconduct.  It  can  act  as  an incentive  for  those  maintaining discipline  and  probity.  Besides, when  the  availability  of appointment  and  opportunities  is limited, there is nothing wrong in preferring LRs, of those employees with clean record over the LRs, of those,  who  have  had  a  tainted record.”  

35. In our opinion, the above observations

lay  down  correct  proposition  of  law  and  we

approve them.

36. To us, therefore, the State Bank was

right in refusing appointment on compassionate

ground to the widow of deceased employee of the

Bank even under the policy in force in year

2000. We see no illegality in the action. We

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hold that the learned Single Judge as well as

the Division Bench were not right in observing

that  since  the  deceased  employee  was

punished,  the  matter  ended  there  and  the

said punishment would be of no consequence so

far  as  appointment  of  his  dependent  on

compassionate ground of the deceased employee

was concerned.

37. Even on second ground, the submission

of the Bank is well-founded. As noted earlier,

the learned Single Judge issued direction to

the Bank to appoint the writ petitioner-widow

of the deceased employee within one month. As

per  settled  law,  a  writ  of  mandamus  can  be

issued directing the authority to consider the

case of the petitioner for an appointment or

promotion as the case may be but no direction

can be given to appoint or promote a person.

38. In  State  of  Mysore  &  Anr.  v.  Syed

Mahmood & Ors., (1968) 3 SCR 363, promotion to

the higher post was to be given on the basis of

seniority-cum-merit.  A was  not  promoted.  He,

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therefore, filed a petition in the High Court

of  Mysore  by  invoking  Article  226  of  the

Constitution claiming promotion. The High Court

issued  a  writ  of  mandamus  directing  the

Government to promote  A. The aggrieved State

approached this Court. 39. Allowing the appeal and setting aside

the direction of the High Court ordering the

State to give promotion, this Court held that

at the most, the High Court could have issued

mandamus directing the State to reconsider the

case  of  the  writ  petitioner  on  the  correct

principle. It could not have issued a direction

to the employer to promote the writ petitioner

with  retrospective  effect.  Syed  Mahmood  was

followed by this Court in several cases. 40. The  learned  counsel  for  the

respondent, no doubt, referred to a decision in

State  of  Bihar  v.  Dr.  Braj  Kumar  Mishra  &

Ors., (1999) 9 SCC 546 wherein this Court held

that normally mandamus can be issued by a writ

Court directing the authority to consider the

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case  of  the  writ  petitioner.  In  exceptional

circumstances,  however,  a  positive  direction

can be issued by granting relief in favour of

the writ petitioner if the Court is otherwise

satisfied.

41. The Court stated;

“It  is  true  that  normally  the Court,  in  exercise  of  its  power under  Article  226/227  of  the Constitution  of  India,  after quashing the impugned order should remand the matter to the concerned authority  particularly  when  such authority consists of experts for deciding  the  issue  afresh  in accordance  with  the  directions issued and the law laid down by it but  in  specified  cases,  as  the instant case, nothing prevented the Court to issue directions when all the facts were admitted regarding the eligibility of the respondent No,  1  and  his  possessing  of  the requisite qualifications. Remand to the  authorities  would  have  been merely  a  ritual  and  ceremonial. Keeping  in  mind  the  lapses attributable  to  the  Commission which  had  failed  to  take appropriate  action  despite recommendation  made  in  favour  of the respondent No. 1, the learned Single Judge as also the Division Bench  of  the  High  Court  felt  it necessary to declare the respondent No.  1-promoter  with  effect  from 1.2.1985.  We  do  not  find  any

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illegality  or  error  of jurisdiction.  Learned  counsel appearing for the appellants were apprehensive that if the impugned judgment is not set aside, it may become precedent and in other cases pertaining to the University, such directions may be issued in future also preventing the authorities and the  State  Government  from exercising their statutory powers. The  apprehension  is  misconceived and without any substance. To allay even such apprehension we deem it appropriate  to  clarify  that  the impugned judgment has been passed under peculiar circumstances of the case  and  is  no  precedent  with respect  to  the  subject  regarding which the appellants have conceived an apprehension”.                 (emphasis supplied)

42. Apart from the fact that in ‘peculiar

circumstances’, a positive direction was issued

by  this  Court  and  it  was  stated  that  the

decision ‘is no precedent’ with respect to the

subject, in our opinion, in the present case,

the second stage did not arise at all.  As we

have held that even under the policy in force

in 2000, the appellant Bank was wholly right

and fully justified in declining the prayer of

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the widow of deceased employee in rejecting her

prayer for extending benefit of appointment on

compassionate  ground.   The  orders  passed  by

both the Courts are, therefore, liable to be

set aside on that ground alone.

43. For the aforesaid reasons, the appeal

is  allowed,  the  order  passed  by  the  Single

Judge and confirmed by the Division Bench of

the  High  Court  is  set  aside  and  the  writ

petition  filed  by  the  widow  of  deceased

employee  of  the  State  Bank  for  getting  an

appointment as dependent of deceased employee

on  compassionate  ground  is  ordered  to  be

dismissed.   

44. On the facts and in the circumstances

of the case, however, the parties are ordered

to bear their own costs.

…………………………………………………J. (C.K. THAKKER)

NEW DELHI, …………………………………………………J. AUGUST 25, 2008. (D.K. JAIN)  

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