Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1641 OF 2010
[Arising out of SLP(C) No.28370 of 2008]
STATE BANK OF INDIA & ANR. ... APPELLANTS
VS.
RAJ KUMAR ... RESPNDENT
O R D E R
R.V.RAVEENDRAN, J.
Leave granted. Heard the parties.
2. The respondent’s father employed as a Messenger in
the Appellant Bank, died on 1.10.2004. 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 Lumpsum Amount” with
effect from 4.8.2005. The new scheme abolished the old
2
scheme for compassionate appointments and instead provided
for payment of an ex gratia lumpsum amount as per its
terms. Clauses 14 and 15 of the new scheme relevant for
our purpose are extracted below:
“14. Date of effect of the
Scheme and disposal of pending applications:
……….Applications pending under the
Compassionate Appointment Scheme as on the
date on which this new Scheme is approved by
the Executive Committee of the Central Board
will be dealt with in accordance with the
new Scheme for payment of ex-gratia lumpsum
amount provided they fulfill all the terms
and conditions of this Scheme.
15. Miscellaneous provisions of the Scheme
x x x x x x x x x
vi. 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deemed abolished/withdrawn and no request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. As the old scheme came to be abolished and
compassionate appointment was no longer permissible after
the new scheme came into force, the Bank on 31.1.2006
advised the family of the deceased to make an application
under the new scheme for ex-gratia payment. Feeling
aggrieved, the respondent filed a writ petition before the
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Allahabad High Court. A learned single Judge of the High
Court by order dated 8.5.2008 directed the appellant to
reconsider the case of the respondent for appointment on
compassionate grounds, holding that the old scheme applied
and the new scheme was only prospective in operation. The
said order was affirmed by the Division Bench by order
dated 1.9.2008, which is under challenge in this appeal by
special leave.
4. Learned counsel for the Bank submitted that even
though the respondent’s father died on 1.10.2004, the
application for compassionate appointment was made only in
June 2005; that before the application could be processed,
the compassionate appointment scheme was abolished and was
replaced by a new scheme on 4.8.2005; and that therefore,
the Bank was justified in calling upon the respondent to
apply under the new ex-gratia scheme.
5. On the other hand, learned counsel for the
respondent submitted that on the date of death of his
father and on the date of making the application, the
compassionate appointment scheme was in force and
therefore, he was entitled to be considered for
compassionate appointment under the said scheme.
6. It is now well settled that appointment on
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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
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.
7. Normally the three basic requirements to claim
appointment under any scheme for compassionate appointment
are: (i) an application by a dependent family member of
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the deceased employee; (ii) fulfillment of the eligibility
criteria prescribed under the scheme, for compassionate
appointment; and (iii) availability of posts, for making
such appointment. If a scheme provides for automatic
appointment to a specified family member, on the death of
any employee, without any of the aforesaid requirements,
it can be said that the scheme creates a right in favour
of the family member for appointment on the date of death
of the employee. In such an event the scheme in force at
the time of death would apply. On the other hand if a
scheme provides that on the death of an employee, if a
dependent family member is entitled to appointment merely
on making of an application, whether any vacancy exists or
not, and without the need to fulfill any eligibility
criteria, then the scheme creates a right in favour of the
applicant, on making the application and the scheme that
was in force at the time when the application for
compassionate appointment was filed, will apply. But such
schemes are rare and in fact, virtually nil.
8. Normal schemes contemplate compassionate appointment on
an application by a dependent family member, subject to
the applicant fulfilling the prescribed eligibility
requirements, and subject to availability of a vacancy for
making the appointment. Under many schemes, the applicant
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has only a right to be considered for appointment against
a specified quota, even if he fulfils all the eligibility
criteria; and the selection is made of the most deserving
among the several competing applicants, to the limited
quota of posts available. In all these schemes there is a
need to verify the eligibility and antecedents of the
applicant or the financial capacity of the family. There
is also a need for the applicant to wait in a queue for a
vacancy to arise, or for a selection committee to assess
the comparative need of a large number of applicants so as
to fill a limited number of earmarked vacancies.
Obviously, therefore, there can be no immediate or
automatic appointment merely on an application. Several
circumstances having a bearing on eligibility, and
financial condition, upto 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. 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
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the scheme or modify the scheme at any time depending upon
its policies, financial capacity and availability of
posts.
9. In this context we may usefully refer to the decision
of this Court in Union of India vs. R. Padmanabhan – 2003
(7) SCC 270, wherein this Court observed :
“That apart, being ex gratia, no right accrues to
any sum as such till it is determined and awarded
and, in such cases, normally it should not only be
in terms of the Guidelines and Policy, in force,
as on the date of consideration and actual grant
but has to be necessarily with reference to any
indications contained in this regard in the Scheme
itself. The line of decisions relation to vested
rights accrued being protected from any subsequent
amendments may not be relevant for such a
situation and it would be apposite to advert to
the decision of this Court reported in State of
Tamil Nadu vs. Hind Stone and Ors. – 1981 (2) SCC
205. That was a case wherein this Court had to
consider the claims of lessees for renewal of
their leases or for grant of fresh leases under
the Tamil Nadu Minor Mineral Concession Rules,
1959. The High Court was of the view that it was
not open to the State Government to keep the
applications filed for lease or renewal for a long
time and then dispose them of on the basis of a
rule which had come into force later. This Court,
while reversing such view taken by the High Court,
held that in the absence of any vested rights in
anyone, an application for a lease has necessarily
to be dealt with according to the rules in force
on the date of the disposal of the application,
despite the delay, if any, involved although it is
desirable to dispose of the applications,
expeditiously.”
We may also refer to the decision of this Court in Kuldeep
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Singh v. Govt. of NCT of Delhi [2006 (5) SCC 702] which
considered the question of grant of liquor vend licences.
This Court held that where applications required
processing and verification the policy which should be
applicable is the one which is prevalent on the date of
grant and not the one which was prevalent when the
application was filed. This Court clarified that the
exception to the said rule is where a right had already
accrued or vested in the applicant, before the change of
policy.
10. In this case the employee died in October, 2004, the
application was made only in June, 2005. The application
was not even by the respondent, but by his mother.
Therefore, it was necessary to ascertain whether
respondent really wanted the appointment, whether he
possessed the eligibility, and whether any post was
available. Within two months of the application, the new
scheme came into force and the old scheme was abolished.
The new scheme specifically provided that all pending
applications will be considered under the new scheme.
Therefore it has to be held that the new scheme which came
into force on 4.8.2005 alone will apply even in respect of
pending applications.
11. The respondent relied upon the following observations
9
in State Bank of India v. Jaspal Kaur – 2007 (9) SCC 571
to contend that he was entitled to be considered under the
old scheme which was in force at the time of the
application by his mother:
“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”.
The said observations are read out of context by the
respondent. In that case the Bank employee died on
1.8.1999. Application was filed by the widow on 5.2.2000.
The case of the widow was considered twice and the request
for appointment on compassionate grounds was declined by
taking into consideration the financial position/capacity
of the family. The High Court allowed the writ petition
filed by the widow in 2004 on the ground that the terminal
benefits of Rs.4,57,607/- received by the family were not
sufficient for the sustenance of the family. In an appeal
1
by the Bank, it was contended before this Court that in
addition to Rs.4,57,607/- paid as terminal benefits, the
widow was getting Rs.2055/- per month as family pension
and that was not considered by the High Court. During the
hearing before this court, the widow relied upon the new
scheme dated 4.8.2005 and sought additional payment in
terms of the scheme. The above observations were made in
the context of rejecting the widow’s request for
additional payment under the 2005 scheme. In fact, this
court allowed the Bank’s appeal and dismissed the writ
petition filed by the widow for additional benefits. The
said observations, cannot therefore be of any assistance
to consider the applicability of the old scheme for
compassionate appointment vis-`-vis the new scheme for ex-
gratia payment.
12. The respondent was not entitled to be considered for
compassionate appointment. The High Court was not
justified in quashing the communication dated 31.1.2006 or
in directing reconsideration of the case of the respondent
for compassionate appointment.
13. We therefore allow this appeal in part as follows:
(i) The orders of the learned Single Judge and
1Division Bench are set aside.
(ii) The respondent and/or his family may file a
fresh application under the new scheme, as
directed by the Bank in its letter dated
31.1.2006.
(iii) The appellant Bank is directed to process such
application under the new scheme, if and when
made, and pay the lump sum ex gratia amount
due in terms of that scheme, to the
beneficiaries, within four months of the
receipt of the application.
____________________J.
(R.V. RAVEENDRAN)
____________________J.
(K. S. RADHAKRISHNAN)
New Delhi;
February 08, 2010.