JUDGMENT
Dharma Rao Elipe, J.
1. The writ appeal filed by the Punjab National Bank against the order passed by the learned single Judge in W.P. (MD) No. 4562 (sic)/2006 dated September 21, 2006 wherein, the learned single Judge after going through the material placed on record, has held that the respondent/writ petitioner’s husband who was employed as cashier in the appellant/Bank at Sivakasi died in harness on December 29, 2003 leaving behind him wife and two minor children. The respondent/writ petitioner, who passed higher Secondary Examination, submitted her application for appointment on compassionate grounds in the year 2003 and consequently in August 2004 on September 13, 2004,the appellant/respondents requested the petitioner to appear for an interview on September 20, 2004 with all original certificates and the same were verified. After more than one year, i.e., on December 7, 2005, the 2nd appellen1/2nd respondent informed the respondent/writ petitioner that instead of compassionate appointment, the respondent/writ petitioner will be paid ex gratia amount as per the circular issued by the 1st respondent/1st appellant dated January 7, 2005. Challenging the correctness of the order, the writ petition was filed.
2. The appellants/respondents have filed their counter affidavit admitting the fact that the writ petitioner’s husband died on December 29, 2003 and further submitted that while conveying the condolences to the family of the deceased, advised the writ petitioner to avail the scheme and in response to the same, the writ petitioner submitted an application or January 7, 2004 and the same was forwarded to the Zonal Office at Chennai, by the Regional Office at Trichy on June 14, 2004 and the same was submitted to the Head Office at New Delhi seeking permission to call for the petitioner for interview by the 2nd appellant/2nd respondent’s office to assess her suitability for compassionate appointment in the 1st appellant/1st respondent Bank in the clerical cadre.
3. Thereafter the matter was placed before the Competent Authority, the Head Office at New Delhi, who on examining the same, permitted the writ petitioner to be interviewed for the post of clerical cadre. Accordingly, the writ petitioner was called for the interview at the Regional Office at Trichy on September 30, 2004 and the evaluation sheet after the interview was forwarded to the Head office with other documents. It is the further case of the appellants/respondents that the Government of India, in the year 2001, issued a Circular stating that instead of providing compassionate appointment to the families of the deceased employees, the Bank may provide suitable monetary benefit/ex gratia to the real indigent family of the deceased employee and the Ministry of Finance, Government of India also directed the Indian Banks’ Association by letter dated October 30, 2003 that the recruitment to the Public Sector Banks should be made on the basis of open advertisement and selection on merit and advised the Banks to formulate a model scheme for payment of monetary assistance instead of compassionate appointment, and advised the Banks to implement the same in all Public Sector Banks on uniform basis. The said letter was forwarded to the 1st appellant/1st respondent Bank and the Board of Directors of the respondent Bank in its meeting held an October 29, 2004, implemented the scheme for providing ex gratia instead of providing compassionate appointment and it came into force on October 29, 2004.
4. It is further submitted that Clause 9.6 of the that the Circular contemplates that the scheme cane into force from the date of its approval by the Board and all the applications pending for compassionate appointment will be dealt with in accordance with the said scheme and as per the said scheme, ex gratia may be granted to the family of the deceased employees subject to the ceiling of Rs. 8 lakhs for the Officers, Rs. 7 lakhs for the Clerical Staff, Rs. 6 lakhs far the Subordinate Staff, provided the source of income of the family is less than 60% of the last drawn salary of the employee.
5. Accordingly, the writ petitioner was denied the compassionate appointment in view of the new scheme which came into force on October 23, 2004. Thus, writ petitioner’s application for compassionate appointment is pending consideration as on date of approval of the scheme by the Board of Directors of the respondent Bank, i.e., on. October 29, 2004. It is further submitted that the writ petitioner is entitled only for payment of ex gratia Therefore, the appointment of the writ petitioner on compassionate basis was correctly rejected by the respondent Bank. Based on the facts and circumstances of the case and following the authorities relied on by both the parties, the learned single Judge ultimately held that the circular dated January 7, 2005 itself states that the decision already taken, can be implemented as, per the earlier scheme and therefore, the writ petitioner’s request to quash the operation of this scheme is found unnecessary, as the same is favourable to the writ petitioner.
6. The learned Counsel for the appellant submitted that the learned Judge has misdirected himself and has misinterpreted the Clause B of the HRD Circular No. dated January 7, 2005 whereby the Scheme for payment of ex gratia (lumpsum Amount) to the family of those employees who died in harness or seek pre-mature retirement due to incapacitation before reaching the age of 55 years has been circulated and has assumed while granting the relief to the respondent/writ petitioner and while directing the Appellant Bankto appoint the writ petitioner on compassionate grounds as if Clause-8 of the Circular, whereby the above schema has been circulated,, was a part of the scheme itself, whereas the same is factually incorrect which is apparent from bare perusal of the Circular No.235.
7. Further, it is submitted by the learned Counsel for the appellants that the learned single Judge has not only misinterpreted the forwarding letter of the scheme, but also misdirected himself in coming to the conclusion the Competent Authority, while permitting concerned Regional Office to call the respondent/writ petitioner for interview has already taken a decision in accordance with the earlier scheme which inter alia provided for compassionate appointment and that as per the scheme which already stand superceded and the guidelines issued thereunder, mere advising any Regional Office to call the candidate for interview is not a final decision of the Competent Authority and such decision is only to ensure that there is no delay in processing the cases and also to ensure that only deserving cases are considered in accordance with the scheme and not to confer any right much less a legal right in favour of the dependent to claim appointment on compassionate grounds without consideration of the same after interview by the Competent Authority or contrary to the settled position in law as laid down by the Hon’ble Supreme Court on the subject.
8. On the other hand, the learned Counsel for the respondent/writ petitioner submitted that immediately after the death of her husband, the writ petitioner submitted her requested and her application was forwarded to the Regional Office as per the terms and conditions of the scheme of 97 and the Head Office after taking the decision to appoint her on compassionate ground, directed the Regional Office to conduct the interview. Accordingly, they have conducted the interview. Meanwhile, a new scheme has come into existence. The writ petitioner’s contention is relied upon the Circular dated January 7, 2005 wherein, in para 8, it is stated that the scheme will come into force from the date it is approval by the Board of the Bank and all such cases in which the application for providing employment on compassionate grounds were received by the Bank and decision was taken in accordance with the said scheme will not be covered under this Scheme. Accordingly, the Head of the Department gave a direction to the Regional Office to conduct an enquiry which comes within this clause (i.e., paragraph 8) of the Circular dated January 7, 2005. Therefore, not appointing the writ petitioner in the compassionate appointment is bad in law.
9. To support his contentions, the learned Counsel for the respondent/writ petitioner relied on the judgment of the Hon’ble Supreme Court Smt. Susema Gosain v. Union of India . In this case one Ramkumar working as Storekeeper in the Department of Director General Border Road (DGBR). In October 1982, he died in harness leaving behind the widow and two minor children. In November 1982, the wife of the deceased sought for appointment in DGBR as Lower Division Clerk on compassionate grounds. In January 1983, she was called for the written test and later on for interview. She passed in the trade test. Since appointment was not given, during September 1985, she approached the High Court and her claim was resisted by the Department and accordingly, the writ petition was dismissed and when the matter was carried to the Apex Court, the Apex Court found fault with the High Court holding that she had then a right to have her case considered for appointment on compassionate ground. As per the scheme, when she passed the teade test in 1983 and interview was conducted by the DGBR, there is absolutely no reason to make her wait till 1985, when the ban on appointment of ladies was imposed.
10. The above cited judgment is not applicable to the facts and circumstances of the present case when the husband of the writ petitioner died in December 2003, she made an application which was under process of consideration, a new scheme came into operation under which, instead of compassionate appointment, the payment of ex gratia was prescribed. Therefore, there is no considerable delay in this matter. We are not able to apply the principles laid down in the judgment reported in 1990-I-LLJ-169 (supra) to this case.
11. The learned Counsel for the writ petitioner also relied upon the judgment reported in Govind Prakash Verma v. Life Insurance Corporation of India and Ors. (2005) 10 SCC 269. This its the case where the appointment under compassionate ground was resisted on the ground that the family pension was paid to the widow and other amounts paid on account of terminal benefits under rules. The Apex Court has held that the claim of compassionate appointment is over and above whatsoever is admissible to the legal representatives of the deceased employees as benefits of service which one gets on the death of the employee. Therefore, compassionate appointment cannot be refused on the ground that any member of the family received the amounts admissible under the Rules. So far as the question of gainful employment of the elder brother is concerned, we find that it had been given out that he has been engaged in cultivation. In the preset case, the case of the respondent was rejected on the ground of replacement of new scheme.
12. Hence, the judgment is not applicable to the facts of the case. Hence, we are not able to apply the principles laid down in the judgment reported in (2005) 10 SCC 289.
13. The learned Counsel for the writ petitioner further relied upon the Judgment reported in National Hydroelectric Power Corporation v. Manik Chand and Anr. (2005) 5 LW 66. In this case, the Apex Court dealt with regard to the delay in appointment that in all claims of 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. As we have observed, there is no delay in the present case to apply the ruling of the Apex (Court to the facts of this case.
14. Therefore it is submitted by the learned Counsel for the writ petitioner that due to delay in processing the application of the writ petitioner by one year, a new schemer came into existence. Therefore, she was deprived to get appointment under compassionate ground. Hence, the learned single Judge is right in directing the respondents to consider the case of the writ petitioner for compassionate appointment.
15. On the other hand, the learned Counsel for the appellant Bank submitted that the writ petitioner is not vested with any legal right or fundamental right to claim the appointment under compassionate grounds as per the objects of the scheme, i.e.,
(a) to replace the existing scheme for appointment on compassionate ground in the service of the Bank of the dependents of those employees who die while in service or seek premature retirement on medical grounds.
(b) To bring about a balance between the business objective of bank and its social obligations towards the families of employees dying in harness or who seek premature retirement due to incapacitation before reaching the age of 55 years.
(c)To provide financial relief to the family of the employee dying in harness or who seek premature retirement due to incapacitation before reaching the age of 55 years.
16. More so, as per the directions, the new scheme was introduced and it came into force from the date of acceptance by the Board of Directors of the Bank dated October 29, 2004. It was further contended that there is a delay in processing the application o£ the writ petitioner for appointment and it cannot be said that the Head office had taken its decision to appoint the writ petitioner and therefore, directed the Regional Office to conduct the interview. Accordingly, the writ petitioner was interviewed Further, it is the policy decision of the Bank to pay the ex gratia instead of making compassionate appointment. Therefore, the Court cannot direct the appellant/Bank to change its policy.
17. It was further vehemently contended by the learned Counsel for the writ petitioner that though the application was processed, but no appointment order was given and therefore, the case of the writ petitioner has to be considered as per the existing policy an on the date of consideration of her application. Though, as on the date of making the application, the old scheme of 97 is applicable, as on the date of completion of the process of application, a new scheme came into existence. As per the new scheme, the writ petitioner is entitled to for payment of ex gratia instead of compassionate appointment. Therefore, the action of the appellant Bank is correct in offering ex gratia instead of appointment on compassionate grounds.
18. The learned Counsel for the appellant Bank relied upon the judgment reported in P.T.R. Exports (Madras) Pvt. Ltd. and Ors. v. Union of India and Ors. wherein, the Hon’ble Supreme Court has laid with regard to the change in the policy in the public interest. In paragraph 5 of the Judgment, the Apex Court has held that grant of licence depends upon the policy prevailing as on the date of the grant of the licence, The Court, therefore, would not bind the Government with a policy which was existing on the date of application as per previous policy.
19. The learned Counsel for the appellant Bank distinguished the Judgment reported in (2005) 5 LW 66 (supra), that it is a matter of right. He also railed upon the Judgment reported in Union Bank of India v. M.T. Latheeh , wherein the Ape Court, with regard to the public policy, has held that the Division Bench has failed to notice that the fresh employment with the Bank as reduced considerably and the grant of employment on compassionate grounds to all the cases would shut, the door for employment, to the ever-growing population of unemployed youth, more particularly when the industry is being asked to reduce the employees by offering retirement, schemes.
20. For the above stated reasons, the learned Counsel for the appellant bank submitted that the decision was taken by the appellant-Bank as per the scheme which came into force as on October 29, 2004 based on the interpretation made by the Assistant Manager while communicating the scheme, does not confer any right on the writ petitioner to claim compassionate appointment, in view of the ex gratia as contemplated under the new scheme.
21. Also, the decisions relied on by the learned Counsel for the respondent/writ petitioner will not have their application to the facts and circumstances of the present case.
22. Hence, after hearing the counsel on either side, we are satisfied that the husband of the writ petitioner died in December 2003. In February 2004, the writ petitioner applied for appointment on compassionate grounds as per the existing scheme of 97 and as per the terms and conditions of the scheme, the application of the writ petitioner was forwarded to the Head Office and accordingly, the Head office directed the Regional Office to conduct the interview of the writ petitioner. It is seen that there is no indication for appointment. But only to re-assess the certificates of the writ petitioner to know for which post she is suitable to be appointed. Further, the new scheme came into force on October 29, 2004. Accordingly, they have taken the decision to pay the ex gratia instead of compassionate appointment. In view of the terms and conditions of the new scheme, the question of giving appointment on compassionate grounds does not arise. The only solution is to pay ex gratia as per the post held by the deceased husband of the writ petitioner. Therefore, the writ petitioner is entitled for Rs. 7 lakhs.
23. As held by the Hon’ble Supreme Court, the right to appoint the writ petitioner on compassionate ground is neither a fundamental right nor a legal right. It is only an exception of the General Rules. Therefore, as rightly contended by the learned Counsel for the appellant. Bank, we have to see the law in operation as on the date of consideration of the writ petitioner’s application, though the application was wade in the year 2003. As per the new scheme which came into operation from October 29, 2004, the writ petitioner is entitled for ex gratia instead of compassionate appointment and we see that there is any delay caused by the appellant Bank to deprive the writ petitioner to have appointment on compassionate grounds from the date of application, they have processed it. Meanwhile, the new scheme came into force, Therefore, we are unable to appreciate the orders passed by the learned single Judge based on the interpretation made by the Assistant Manager while circulating the scheme to various Departments on January 7, 2005, which is contrary to the terms and conditions of the Scheme, more so to Clause 9.6 of the scheme.
24. Therefore, we consider it appropriate to set aside the order passed by the learned single Judge and the writ appeal is allowed. No costs. Consequently, connected miscellaneous petition is closed.