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CASE NO.: Appeal (civil)  409 of 2007

PETITIONER: State Bank of India & Ors.                              .... Petitioner(s)

RESPONDENT: aspal Kaur                                                      ...Respondent(s)

DATE OF JUDGMENT: 01/02/2007

BENCH: Dr. AR. Lakshmanan & Altamas Kabir

JUDGMENT: J U D G M E N T (Arising Out of SLP (C) NO. 2432 OF  2006)

Dr. AR. Lakshmanan, J.

Leave granted. On 07.08.1996, the Government of India, Ministry of  Finance, issued guidelines regarding scheme of appointment  of dependents of deceased employees on compassionate  grounds, which were entirely based on the observations of this  Court in Umesh Kumar Nagpal vs. State of Haryana &  Ors., (1994) 4 SCC 138. Subsequently, on 23.08.1996, the  Indian Banks Association issued a circular suggesting to all  Public Sector Banks, certain amendments to the scheme on  compassionate appointment, while taking into account the  financial condition of the family, the family pension, gratuity,  proceeds of LIC, etc should be taken into consideration. Based  on the guidelines issued by the Government of India and the  Indian Banks Association, the appellant Bank framed a  scheme for appointment on compassionate grounds for  dependent of deceased employees. A memorandum of the  same was presented before the Central Board of the Bank,  which was approved on 16.11.1996. On 01.08.1999, Record Assistant (Cash & Accounts) in  the Dhab Wasti Ram, Amritsar branch, Sri. Sukhbir Inder  Singh (late), passed away. The respondent, widow of Sri.  Sukhbir Inder Singh applied for compassionate appointment  in the appellant Bank on 05.02.2000. On 07.01.2002, the  competent authority of the Bank declined the application of  the respondent in view of the scheme vis-‘-vis the financial  position of the family. Against this decision of the authority  the respondent filed Civil Misc. Writ Petition No. 3077/2002  before the Punjab and Haryana High Court. The High Court ordered reconsideration of the case of  Jaspal Kaur, respondent herein by its order dated 11.12.2003.  On 05.03.2004, the Deputy General Manager of the Bank  reconsidered the case of the respondent and declined  appointment to the respondent on compassionate ground after  taking into consideration the financial condition of the family.  The Competent Authority thereafter declined the request of the  respondent on 03.04.2004. This decision was conveyed to the  respondent by the appellants on 05.04.2004.  Thereafter, the respondent filed one more Civil Misc. Writ  Petition No. 9629/2004 before the Punjab and Haryana High  Court praying for quashing of the order dated 03.04.2004. The  appellants filed their reply on 03.05.2005. On 20.09.2005, the  High Court allowed the writ petition filed by the respondents  and observed that, "\005the aforesaid kitty of Rs. 4,57,607/-

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granted to the family on account of terminal benefits could not  be accepted to be sufficient . The said amount was naturally in  the shape of a security for the marriage of the daughters\005In  our considered view the aforesaid income is not sufficient for  the bare maintenance of the family".  It is against this order and judgment of the Punjab and  Haryana High Court, this Civil Appeal by way of Special Leave  Petition is preferred by the appellant Bank in this Court. Learned senior counsel Mr. Mukul Rohtagi appeared on  behalf of the appellant Bank and learned Counsel Mr. P.N.Puri  appeared for the respondent.  It was submitted by Mr. Mukul Rohtagi, that the High  Court has failed to appreciate that the respondent could be  considered for compassionate appointment only under the  scheme framed by the Bank.  Hence the provisions of the  scheme viz. compassionate appointment applies only in cases  wherein the deceased has left the family in penury and  without any means of livelihood are required to be taken into  consideration.  Also the appellant-Bank, as per the Scheme, is  required to look at the penurious condition/indigent  circumstances existing at the time of death of the sole  breadwinner, warranting such compassion. And in any case if  there does not exist any such circumstances, a writ of  mandamus, cannot be issued, de hors the scheme. It was submitted that, the High Court failed to appreciate  that in the present case the family of the deceased employee  consists of widow, twin daughters and one son, and the  financial condition of the family is as under: a)      a sum of Rs.4,57,607/- as terminal benefits has  been paid (after deducting Rs.19,183/- towards  liabilities); b)      a sum of Rs.2055/- p.m. was being paid towards  family pension and monthly income under Staff  Mutual Welfare Scheme. c)      The total monthly income of the family comes to  Rs.5855/- (monthly pension of Rs.2055/- +  Rs.3800/- p.m. as notional interest on the  investment of Rs.4,57,607/-). It was further submitted that the High Court failed to  appreciate the fact that the terminal benefit of Rs.4,57,607/-  paid to the family is an integral part of the financial security  made available to the family of the deceased.  The payment of  terminal benefits are an important factor and cannot be left  out while considering the financial condition of the family. Mr. Mukul Rohtagi submitted that the Division Bench of  the High Court erred in substituting its views with the  views/findings of the competent authority, by holding that the  family income "is not sufficient for the bare maintenance of the  family". Learned senior counsel relied on the decisions of this  Court in support of his contentions. He submitted that this  Court has held that the Court exercising the jurisdiction of  judicial review should not interfere with findings of fact arrived  by the competent authorities, except in the case of mala fides  or perversity as held in the case of Bank of India & Anr. vs.  Degala Suranarayana, (1999) 5 SCC 762.  He also relied on  a recent decision of this Court in the case of Union Bank of  India & Ors. vs. M.T.Latheesh, (2006) 7 SCC 350, (Dr. AR.  Lakshmanan and Tarun Chatterjee, JJ) where this Court held  that, "the specially constituted authorities in the rules or  regulations like the competent authority in this case are better  equipped to decide the cases on facts of the case and their  objective finding arrived on the appreciation of the full facts  should not be disturbed".  

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The learned senior counsel also made the following  submissions: It is well established that the High Court, while exercising  jurisdiction under Art. 226 of the Constitution of India, does  not act as a Court of appeal. The High Court failed to appreciate that clause (1) of the  Scheme provides that in order to determine the financial  condition of the family, the amounts paid towards terminal  benefits, investments, income from other sources and size of  the family etc. are required to be taken into account.   However, in the present case while holding the condition of the  family is not sufficient for the bare maintenance of the family,  the High Court has failed to appreciate that the monthly  income of Rs.2055/- p.m. and the terminal benefits of  Rs.4,57,607/- has been paid to the family of the deceased. The High Court also failed to appreciate a well settled  principle of law laid down by this Court in the case of L.I.C. of  India vs. Asha Ramchhandra Ambekar (Mrs) & Anr., (1994)  2 SCC 718 that the Court cannot order appointment on  compassionate ground, de hors the provisions of the statutory  regulations and instructions and that hardship of the  candidate does not entitle him to compassionate appointment  de hors the statutory provisions. The High Court also failed to appreciate that the  appointment under the scheme of compassionate appointment  was at the discretion of the authority which was to be  exercised keeping in view the scheme and the object/rationale  behind it.  It was submitted that compassionate appointment  cannot be claimed as a matter of right.  Moreover the public  office is not heritable. The High Court failed to appreciate the ratio in General  Manager (D&PB) & Ors. vs. Kunti Tiwary & Anr., (2004) 7  SCC 271 case where it was held that the criteria of penury has  to be applied and only in cases where the condition of the  family is "without any means of livelihood" and "living hand to  mouth" that compassionate appointment was required to be  granted.  The learned counsel appearing for the respondents  submitted that the touchstone of compassionate employment  is a stage of penury and destitution to which the family is  reduced to as a result of the death of an employee in harness.  Late Shri. Sukhbir Inder Singh was drawing a monthly salary  of Rs. 15000/- when he died. On his death, besides his widow  he left behind three minor children including two 15 years old  daughters and a son who was 8 years of age. The respondents  contented that the bank has not considered the case of  dependent of Sukhbir Inder Singh keeping in view the size of  the family and liabilities. Further the respondents relied on para 8 of the Scheme  which reads as under:- "8) EX-GRATIA:  Ex-gratia on compassionate grounds in lieu of  compassionate appointment may be granted to the family of  the employee and subject to the ceilings specified below, if  the monthly income of the family from all sources calculated  in the manner shown below in paragraph 9 (B) is less than  60% of the last drawn gross salary (net of taxes) of the  employee. The family shall be deemed to be eligible for ex- gratia payment if the income so arrived at is below 60% of  the gross salary (net of taxes) last drawn, and ineligible if it  is 60% or more of the gross salary (net of taxes). Ex-gratia  will be paid to the family of the deceased employee or the  employee who has retired due to incapacitation of eligible  under the Scheme within three months of the receipt of  application, complete in all respect".  

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It was submitted that the Bank in its policy issued in  2005 laid down criteria for determining penury i.e. the income  of the family of the deceased employee/dependents have been  reduced to less than 60% of the salary which was drawn by  the deceased at the time of death.  In the present case, as have  been stated above, the income of the family of deceased is  Rs.3000/- only, but even according to the finding given in  order dated 03.04.2004, the said income is Rs.5855/- which is  less than 40% of the salary last drawn by Late Shri. Sukhbir  Inder Singh. The respondents claimed that this scheme  formulated on 18.08.2005, was not complied with by the  appellant bank while deciding her claim for appointment in  the Bank on compassionate ground. Concluding his submissions, Mr. P.N.Puri, submitted  that the stage of penury and destitution is to be determined  after balancing the assets vis-‘-vis liability which was not  done in this case by the appellant bank. We heard both the parties in detail. We have also perused  through all the documents presented in the Court and both  the judgments passed by the High Court of Punjab and  Haryana. We are now of the view that, the submissions made by  the appellants deserve favourable consideration and merit  acceptance.  The law with regard to employment on compassionate  grounds for dependents of a deceased employee was laid down  by this Court in case of Umesh Kumar Nagpal vs. State of  Haryana & Ors. (supra), where this Court observed that,  "Appointments in the public services are made strictly on the  basis of open invitation of applications and merit. However,  exceptions are made in favour of dependents of employees  dying in harness and leaving their family in penury and  without any means of livelihood". This Court has further observed in General Manager  (D&PB) & Ors. vs. Kunti Tiwary & Anr. (supra), that, "the  particulars of their income have been noted in their  application and it certainly could not be said on the basis  thereof that the respondents were living hand to mouth. The  Division Bench erred in diluting this criteria of penury to one  of "not very well to do". It was again observed in 2005 by this Court in the case of  SBI vs Vikas Dubey, (Civil Appeal No.7003/05 dated  21.11.2005), also followed the decision in Kunti Tiwary  (supra) case. Hence a major criterion while appointing a person on  compassionate grounds should be the financial condition of  the family the deceased person left behind. Unless the  financial condition is entirely penury, such appointments  cannot be made. In the present case the financial condition of  the respondents family is not one of destitution, the appellants  have already paid a sum of Rs.4,57,607/- as terminal benefits  (after deducting Rs.19,183/- towards liabilities); a sum of  Rs.2055/- p.m. was being paid towards family pension and  monthly income under Staff Mutual Welfare Scheme and in  addition the total monthly income of the family comes to  Rs.5855/- (monthly pension of Rs.2055/- + Rs.3800/- p.m. as  notional interest on the investment of Rs.4,57,607/-). The  competent fact finding authority on the basis of the above  financial details had arrived at the conclusion that the  financial condition of the family is not penurious and that the  family earns sufficient income to maintain themselves. Hence  appointment on compassionate ground was not granted to the  respondent. We however, do not feel the necessity to interfere  with this order of the Bank Authority on the fact situation of

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this case. The competent authority of the bank had to consider the  case of the respondent as per the laid down parameters laid  down in the scheme. Accordingly, while deciding on the  financial condition of the respondent factors like: a)      Family Pension b)      Gratuity c)      Employee’s/Employer’s contribution to the  Provident Fund d)      Any compensation paid by the Bank or its  Welfare Fund e)      Proceeds of LIC Policy & other investments of the  deceased employee f)      Income for family from other sources g)      Employment of other family members  h)      Size of the family and liabilities, if any, etc.

were taken into consideration by the Competent Authority and  based on these details appointment was declined to the  respondent on compassionate ground.          Also we are of the view that the specially constituted  authorities in the rules or regulations like the competent  authority in this case are better equipped to decide the cases  on facts of the case and their objective finding arrived on the  appreciation of the full facts should not be disturbed.  Both  the Benches of the High Court that heard this present matter  have erred in entertaining the claim of the respondent and  allowing the claim of the respondent. This was the view taken  in a recent decision of this Court in Union Bank of India and  Others vs. M.T. Latheesh (supra), where the court observed  that, "Learned Single Judge and the Division Bench by  directing appointment has fettered the discretion of the  appointing and selecting authorities.  The Bank had  considered the application of the respondent in terms of the  statutory scheme framed by the Bank for such appointment". Finally in the fact situation of this case, Sri. Sukhbir  Inder Singh (late), Record Assistant (Cash & Accounts) on  01.08.1999, in the Dhab Wasti Ram, Amritsar branch, passed  away. The respondent, widow of Sri. Sukhbir Inder Singh  applied for compassionate appointment in the appellant Bank  on 05.02.2000 under the scheme which was formulated in  2005. The High Court also erred in deciding the matter in  favour of the respondent applying the scheme formulated on  04.08.2005, when her application was made in 2000. A  dispute arising in 2000 cannot be decided on the basis of a  scheme that came into place much after the dispute arose, in  the present matter in 2005. Therefore, the claim of the  respondent that the income of the family of deceased is  Rs.5855/- only, which is less than 40% of the salary last  drawn by Late Shri. Sukhbir Inder Singh, in contradiction to  the 2005 scheme does not hold water.  In the result, we allow the appeal filed by the appellant  the Bank in this case and set aside the order passed by the  two Benches of the High Court of Punjab and Haryana.  However, there shall be no order as to costs.