{"id":160115,"date":"2006-08-18T00:00:00","date_gmt":"2006-08-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/union-bank-of-india-and-ors-vs-m-t-latheesh-on-18-august-2006"},"modified":"2019-01-04T16:41:06","modified_gmt":"2019-01-04T11:11:06","slug":"union-bank-of-india-and-ors-vs-m-t-latheesh-on-18-august-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/union-bank-of-india-and-ors-vs-m-t-latheesh-on-18-august-2006","title":{"rendered":"Union Bank Of India And Ors vs M.T. Latheesh on 18 August, 2006"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Union Bank Of India And Ors vs M.T. Latheesh on 18 August, 2006<\/div>\n
Author: . A Lakshmanan<\/div>\n
Bench: Dr. Ar. Lakshmanan, Tarun Chatterjee<\/div>\n
           CASE NO.:\nAppeal (civil)  3548 of 2006\n\nPETITIONER:\nUnion Bank of India and Ors.\n\nRESPONDENT:\nM.T. Latheesh\n\nDATE OF JUDGMENT: 18\/08\/2006\n\nBENCH:\nDr. AR. Lakshmanan & Tarun Chatterjee\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
Dr. AR. Lakshmanan, J.\n<\/p>\n
Leave granted.\n<\/p>\n
The present appeal is filed by the Union Bank of India against the final
\njudgment dated 25.2.2005 of the Division Bench of the High Court of Kerala
\nat Ernakulam in Writ Appeal No. 883 of 2003 where the High Court has upheld
\nthe judgment of the learned single Judge which ordered the appellant-Bank
\nto grant employment to the respondent in terms of the directions of the
\nlearned single Judge on compassionate grounds.\n<\/p>\n
It is settled law that the compassionate employment has to be granted in
\nvery rare necessitous circumstances.\n<\/p>\n
The appellant-Bank in order to reduce the individual human discretion, had
\nformulated a Scheme for employment on compassionate grounds in terms of the
\njudgment of this Court in Umesh Kumar Nagpal v. State of Haryana and Ors.,
\n[1994] 4 SCC 138. The Scheme provides that the compassionate employment is
\nmeant only for cases where the bereaved person’s family is in grave penury.\n<\/p>\n
The Scheme further provides the system for computation of the financial
\ncondition of the concerned family including the various heads of recurring
\nand fixed incomes receivable by the family to determine their entitlement
\nfor the compassionate employment. It is pertinent to mention that the
\npension was not payable in the Bank prior to 1994 when an option for the
\nsame was given to the employees for the first time. The availability of
\npension to the family of the deceased employee is also one of financial
\nparameters for computation of the financial condition of the family
\nbecause, as aforesaid, the said option was exercised by less than half of
\nthe employees. The said Scheme was subsequently amended in 2003 to provide
\ncash compensation in some of the deserving cases, who were otherwise
\nqualified as per income norms, when the compassionate was not feasible.\n<\/p>\n
As already noticed, the Bank circulated a Scheme for appointment of
\ndependants of deceased employees on compassionate grounds. A copy of the
\nCircular and the Scheme annexed to the same is annexed as Annexure P-1
\ncollectively.\n<\/p>\n
Some of the salient feactures of the Scheme read thus:\n<\/p>\n
“Union Bank of India<\/p>\n
Department of Personnel<\/p>\n
Personnel Policy Section<\/p>\n
Scheme For Appointment of Dependant of Deceased Employees on Compassionate
\nGrounds.\n<\/p>\n
\tWhereas it is deemed expedient and necessary to provide for
\n\tappointment of dependants of deceased employees dying in harness
\n\tand leaving his\/her family in penury and without any means of
\n\tlivelihood the Bank hereby frames the following scheme providing
\n\tfor and regulating the method of appointment in the
\n\tclerical\/subordinate cadre on compassionate grounds of widow,
\n\twidowers and children\/dependents of its employees who die while in
\n\tservice.\n<\/p>\n
1.\tShort Title and Commencement<\/p>\n
\t………………………………………………………….
\n\t…………………………………………\n<\/p>\n
\t………………………………………………………….
\n\t…..\n<\/p>\n
2.\tDefinitions<\/p>\n
\t………………………………………………………….
\n\t………………………………………..\n<\/p>\n
\t………………………………………………………….
\n\t…….\n<\/p>\n
3.\tAppointment Under The Scheme:\n<\/p>\n
The Bank may, in its discretion, appoint in the Bank in any of the posts
\nmentioned hereunder, the widow or widow or widower or son (includes legally
\nadopted son) or a daughter of a deceased employee of the Bank or a near
\nrelative indicated by the widow\/widower (in case the deceased employee has
\nleft behind no chrildren of his own eligible for appointment) on whom
\nshe\/he will be wholly dependent and who would give in writing that he\/she
\nwill look after the family of the deceased employee, if the widow or
\nwidower or son or daughter or a near relative, as the case may be, fulfils
\nthe criteria for appointment under the Scheme.\n<\/p>\n
\tWhere the deceased employee was a widow\/widower the Bank may
\n\texercise its discretion to appoint the next elder in the family.
\n\tHowever, in the case of an unmarried deceased employees, the Bank
\n\tmay exercise its discretion to appoint his\/her brother or sister
\n\tsubject to clause 5(iii) and (iv) of the Scheme. In the case of a
\n\twidower, however, (a husband of a deceased female employee) will be
\n\tconsidered for appointment on compassionate grounds, only if he was
\n\tfully dependant upon his wife and is incapable of maintaining
\n\thimself either for the reason of accident or sickness or otherwise.
\n\tSuch candidate, however, will be eligible for appointment subject
\n\tto his being found suitable for appointment so as to discharge his
\n\tduties in the normal circumstances.\n<\/p>\n
\tThe appointment under this Scheme shall be made in clerical and
\n\tsub-ordinate cadres, which is as under:\n<\/p>\n
(i)\tCashier-cum-Clerk\/Typist-cum-Clerk\/Telephone Operator.\n<\/p>\n
(ii)\tStenographer and such other posts in clerical cadre.\n<\/p>\n
(iii)\tSubordinate Staff.\n<\/p>\n
4.\tSanction For Appointment<\/p>\n
Appointment under the Scheme will be made by the Competent Authority. The
\nobject of granting compassionate appointment to the dependant of the
\ndeceased employee is to enable the family to tide over the sudden crisis,
\ncompassionate appointment will be offered by the Bank only in the case
\nwhere the Bank is satisfied that the financial condition of the family is
\nsuch that but for the prrovision of employment, the family will not be able
\nto meet the crisis. While considering such appointment the competent
\nAuthority will take into account the following to determine the financial
\ncondition of the family:-\n<\/p>\n
(a)\tFamily Pension<\/p>\n
(b)\tGratuity<\/p>\n
(c)\tEmployees’s\/Employer’s contribution to the Provident Fund<\/p>\n
(d)\tAny compensation paid by the Bank or its Welfare Fund<\/p>\n
(e)\tProceeds of LIC Policy and other investments of the deceased
\nemployees<\/p>\n
(f)\tIncome for family from other sources<\/p>\n
(g)\tEmployment of other family members<\/p>\n
(h)\tSize of the family and liabilities, if any, etc.”\n<\/p>\n
The father of the respondent who was working as a Clerk-cum-Cashier in the
\nBank died on 12.8.2001. He was a pension optee.\n<\/p>\n
On 12.1.2002, the respondent applied for employment in the Bank on
\ncompassionate ground. The said request for appointment on compassionate
\nground was declined by the competent authority of the Bank on the ground
\nthat the respondent’s family was not indigent. The competent Authority took
\ninto consideration the net terminal benefits of Rs. 5,47,495\/- received by
\nthe family after deducting the liability including the housing loan and
\npersonal loan. The competent Authority also considered that the family of
\nthe deceased employee at that time had also received monthly family pension
\nof Rs. 4,468- (which at present is Rs. 5, 176\/-).\n<\/p>\n
On 30.7.2002, the respondent filed a writ petition in the High Court
\nchallenging the rejection order of the Bank to appoint the respondent on
\ncompassionate ground. The Bank filed their counter affidavit to the writ
\npetition. On 26.3.2003, the learned single Judge of the High Court allowed
\nthe writ petition on the ground that the respondent being eligible as per
\nthe Scheme formulated by the Bank was liable to be appointed on
\ncompassionate grounds. The appellant-Bank filed Writ Appeal No. 883 of 2003
\nbefore the Division Bench of the High Court along with a miscellaneous
\napplication being I.A. No. 181 of 2003 for ad-interim stay. The Division
\nBench of the High Court dismissed the writ appeal by the impugned judgment.
\nAggrieved by the dismissal of the appeal, the Bank has preferred the above
\nappeal by way of special leave petition in this Court.\n<\/p>\n
We heard Mr. Raju Ramachandran, learned senior counsel assisted by Mr. O.P.
\nGaggar, learned counsel appearing for the appellants and Mr. G. Prakash,
\nlearned counsel appearing for the respondent.\n<\/p>\n
Mr. Raju Ramachandran drew our attention to the salient features of the
\nScheme for appointment of dependant of deceased employees on compassionate
\ngrounds. He also invited our attention to the pleadings, the judgments
\nrendered by the learned single Judge and the Division Bench and
\ndemonstrated before us that the criteria fixed for considering eligibility
\nfor compassionate appointment has not been satisifed in this case by the
\nrespondent and, thereof, the respondent is not entitled to any relief in
\nthe writ petition as prayed for by him. He also submitted that the
\ncompassionate employment in the Bank is meant only for rare cases of
\ncomplete penury of the dependants of the deceased employee and in facts and
\ncircumstances of this case where the family of the employee is getting
\npension and has other income, such a situation is not present. In support
\nof his submissions, he relied on the following rulings of this Court:\n<\/p>\n
1.\tUmesh Kumar Nagpal v. State of Haryana and Ors., [1994] 4 SCC 138.\n<\/p>\n
2.\tGeneral Manager (D & PB) and Ors. v. Kunti Tiwary and Anr., [2004]
\n7 SCC 271.\n<\/p>\n
3.\tPunjab National Bank and Ors. v. Ashwini Kumar Taneja,<\/a> [2004] 7 SCC\n<\/p>\n
265.<\/p>\n
Mr. Raju Ramachandan has also demonstrated before us with facts and figures
\nthat the respondent was not eligible for compassionate employment on the
\nfinancial parameters.\n<\/p>\n
Per contra, Mr. G. Prakash, learned counsel appearing for the respondent
\nsubmitted that the respondent’s father was sanctioned a total amount of Rs.
\n5, 06, 910\/- under various heads including gratuity, Provident Fund etc.
\nand that the Provident Fund Scheme was solely based on the employee’s
\ncontribution and out of the total amount mentioned above an amount of Rs.
\n4,86,000\/- was deducted towards liability by the Bank itself and the net
\namount received on the death of his father was Rs. 74,910\/- and that the
\nfamily of the deceased consists of wife, unmarried daughterr and 3
\nunemployed sons including the respondent herein and the deceased’s wife is
\na chronic asthmatic patient and the family is having no earning member and
\nthe sole income is the family pension received by the mother of the
\nrespondent which comes to Rs. 3, 232\/- and is likely to be reduced after 7
\nyears. He further submitted that the respondent belongs to the Scheduled
\nCaste category and that none of his family members is employed and that the
\napplication submitted by the respondent was rejected by the Bank without
\ngiving any reason. After referring to the Scheme formulated by the Bank, he
\nfurther submitted that the learned single Judge after taking into
\nconsideration the entire circumstances allowed the writ petition filed by
\nthe respondent directing the Bank to give compassionate appointment and
\nthat the appeal preferred by the Bank was also dismissed by the Division
\nBench, therefore, this Court exercising its jurisdiction under Article 136
\nof the Constitution of India will not interfere with the concurrent
\nfindings rendered by the High Court. He further submitted that the Bank has
\ngiven appointment to persons who had recieved financial assistance and were
\nwell of in life. He also placed before us the copies of the appointment
\norders issued after rejecting the claim of the respondent to some other
\npersons on compassionate grounds and that the appointment given will
\nclearly go against the contention of the Bank that there is no vacancy at
\npresent and the subsequent compassionate appointment given to the
\nabovementioned persons is discriminatory and is in violation of Articles 14
\nand 21 of the Constitution of India. When the financial status of the
\nrespondent is compared to the abovementioned persons, the respondent’s
\nfamily is having only ten cents of land and a small house situated therein
\nand is living with the meager income of pension. Concluding his arguments,
\nhe submitted that the contention of the Bank that the respondent is not
\nentitled for compassionate appointment Scheme is unsustainable and that the
\nrespondent is not given any lump sum payment as offered to the others in
\nthe event of not taking compassionate appointment. He cited the decision of
\nthis Court in Balbir Kaur and Anr. v. Steel Authority of India Ltd and
\nOrs.,<\/a> [2000] 6 SCC 493 in support of his contention which held that the
\ndenial of compassionate appointment in deserving cases is denial of social
\nand economic justice as enshrined in the Constitution and that the
\nrespondent is a deserving candidate for compassionate appointment and has
\nbeen discrimianted in the matter of appointment by the Bank and both the
\nlearned single Judge and the Judges of the Division Bench concurrently
\nfound that for eking out livelihood, there is no sufficient income for the
\nfamily of the respondent.\n<\/p>\n
We have carefully considered that rival submissions with reference to the
\nrecords. The impugned judgment of the Division Bench is based on a number
\nof wrong facts which are contrary to the facts available on records. First,
\nthe terminal benefits paid to the dependents for deceased employee are Rs.
\n7,18,751\/- which after adjusting the pending housing loan and personal loan
\namount comes to Rs. 5,47,495\/- This sum was actually paid. Secondly, the
\nfamily of the deceased employee was given family pension of Rs. 4,468 (Rs.
\n3232 basic and Rs. 1236 DA) at the time of death which as of now is Rs. 5,
\n176\/- Thirdly, the mention that the Bank has provided employment to kith
\nand kins of four dependents of high ranking officers is also wrong. In fact
\nonly three dependents of the deceased employees have been provided
\ncompassionate employment. One of them was a sub-staff employee, lower in
\nrank than the father of the respondent. Second was dependent of a clerical
\nstaff employee and third is the dependent of a junior most grade officer.
\nTwo of them are scheduled castes. And lastly, the description of the
\ndependents of the deceased employee is also wrong. The deceased employee is
\nsurvived by widow, three sons and one daughter and not one son and three
\ndaughters as held.\n<\/p>\n
The Division Bench, in our opinion, has failed to notice the fact that the
\nfresh employment with the bank has reduced considerably and the grant of
\nemployment on compassionate grounds to all the cases shall shut the door
\nfor employment to the ever-growing population of unemployed youth more
\nparticuarly when the industry is being asked to reduce the employees by
\noffering retirement schemes. The Division Bench has failed to appreciate
\nthe fact that the scheme for compassionate employment is very elaborate and
\nit provides for determination of the financial condition of the financial
\nconditions of the family on various factors and takes into consideration
\nthe income of the family from all sources. The High Court also has not
\nnoticed that the impugned judgment shall open a Pandora box of litigation
\nand all the persons who have been denied any such employment shall take
\nrecourse to the similar litigations. This apart, the Division Bench has
\nalso arrived at a wrong finding that the amount of terminal benefits of the
\nrespondent is paltry and calculated family pension of Rs. 100\/- per day
\nthereby holding that the family of the respondent is in penury whereas in
\nfact the family is receiving monthly pension of Rs. 5,179\/- in addition to
\nthe terminal benefits already received. The Bench has also wrongly
\nconsidered the basic pension amount of Rs. 3,232\/- as the full pension
\namount and has ignored the dearness allowance payable on the same. In the
\ninstant case, the Division Bench came to a wrong finding that the terminal
\nbenefits were calculated at Rs. 5,60,910.35 but the family was paid Rs.
\n74,910\/- After adjusting the loan amount, the terminal benefits paid to the
\ndependants of the deceased employee are Rs. 7,18,751\/- which after
\nadjusting the pending housing loan and personal loan amount are Rs.
\n5,47,495\/- which was actually paid to the family. This lump sum amount
\nwould also generate the reasonable monthly interest amount which was also
\nconsidered by the competent authority in computing the recurrent income to
\nthe family. The Division Bench, in our opinion, came to a wrong finding
\nthat the person given employment were kith and kin of four high ranking
\nofficials and erronneously held that the appellant acted arbitarily and
\ncapriciously and was indiferrent to the needs of his employees and caring
\nonly for the high salaried officers of the same bank. It is a matter of
\nrecord that the amount of pension alone was about 60% of the last drawn
\nsalary of the deceased employee and besides that the employee’s dependants,
\nhad received a lump sum monetary benefits of Rs. 5,47,495\/- after
\noffsetting the housing loan and personal loan outstanding which could also
\ngenerate a substantial monthly income if invested wisely. The High Court
\nalso committed an error in directing the appointment of the respondent
\nunder the new scheme of compassionate appointment 2003 although he was not
\neligible to be appointed.\n<\/p>\n
When an employee dies and any one of the dependent mentioned in clause 2\n<\/p>\n
(c) of the appointment on compassionate ground scheme formulated by the
\nBank can forward an application as per the said scheme. Consequently the
\ndependent does not automically become entitled to get employment. The right
\nthat accrues on the applicant is a right to get preferential treatment
\nagainst the general principle of appointment, subject to the discretion of
\nthe Bank. Further the possession of relevant qualification does not create
\nany vested right on the applicant to get appointed to a post specified by
\nthe scheme.\n<\/p>\n
It is submitted that the dependent of a deceased employee will not get any
\nvested or hereditary right to succeed the deceased in the matter of
\nemployment. What he is entitled to is a preferential treatment for
\nappointment as against the general principle of appointment. The employer
\nis not under obligation to grant appointment to the dependents. The duty of
\nthe employer is only to properly consider the application.\n<\/p>\n
It is also not true that terminal benefits have been the sole reason to
\ndecline appointment to the applicant as stated in the O.P. by the
\nrespondent. According to clause 4 of the Scheme for compassionate
\nappointment formulated by the Bank, the competent authority would take into
\nconsideration the following factors while considering a claim for
\ncompassionate appointment.\n<\/p>\n
(a)\tfamily pension<\/p>\n
(b)\tgratuity<\/p>\n
(c)\temployees contribution to the Provident fund<\/p>\n
(d)\tany compensation paid by the bank or its welfare fund<\/p>\n
(e)\tproceeds of LIC policy and other investments of the deceased
\nemployee<\/p>\n
(f)\tIncome for family from other sources<\/p>\n
(g)\tEmployment of other family members<\/p>\n
(h)\tSize of the family and liabilities if any etc<\/p>\n
Thus it is submitted that terminal benefits are not the sole criteria to
\njudge whether employment is to be granted or not. The respondent Bank takes
\ninto account all the relevant consideration subject to the policy of
\nappointment to the bank service including computerization and consequential
\nsubstantial reduction of staff and also the scheme of voluntary retirement
\nintroduced to reduce the number of employees.\n<\/p>\n
It is submitted that the scheme or compassionate appointment, being an
\nexception to the general rule of appointment has to be applied cautiously.
\nFor the whole of Kerala the Bank had identified only 4 vacancies in the
\ncategory and 4 persons from the sub staff who were waiting for promotion
\nfor a number of years were selected and included in the promotion list. On
\naccount of the earlier order passed by the Court with respect to
\ncompassionate appointment, two persons had to be promoted. Thus out of the
\n4 eligible persons awaiting promotion only two were given promotion as they
\ncould not be appointed since their place was given on compassionate
\nappointees.\n<\/p>\n
The Senior Manager (Personnel) of the appellant-Bank filed an additional
\naffidavit on 11.04.2005 explaining the circumstances under which some
\ncompassionate appointments referred to in the impugned judgment were
\ngranted. It is also a matter of fact that the dependants of three persons
\nonly and not four persons as mentioned in the impugned judgment were
\nprovided with compassionate employment and the three persons are each
\ndependants of a peon, clerk and a junior most officer and not the high
\nranking or influential persons as mentioned in the impugned judgment and
\nthat two of the said persons belonging to Scheduled Castes.\n<\/p>\n
In the case of those three persons who were provided with compassionate
\nemployment the net terminal benefits of the deceased employee after making
\ndeductions from the liabilities towards the bank for housing loan and other
\nloan was Rs. 15,684\/- Rs. Nil and Rs. Nil respectively. The compassionate
\nemployment to the persons Ms. K.K. Rasanna was provided on reconsideration
\nof her case as per the directions of the High Court vide judgment dated
\n21.03.2003 in writ petition No. 22190\/2002 filed by her. The other two
\ncases came up for consideration under the new scheme where on adopting the
\ncriterion fixed in the new scheme, the total income of the family after
\nclubbing the monthly pension and the interest income on the aforesaid lump
\nsum terminal benefits was less than 60% of the last drawn salary of the
\nsaid employee and therefore the widow became eligible to either a lump sum
\npayment to make up the deflict of 60% or appointment under new
\ncompassionate employment scheme on being found suitable.\n<\/p>\n
The respondent filed an additional affidavit on 25.11.2004 in the High
\nCourt. The High Court during the course of the hearing of the writ appeal
\ngranted permission to the respondent to file an additional affiadvit
\nmentioning additional facts in relation to the appointment made by the Bank
\nunder the scheme though terminal and other benefits were given to the
\ndependants of deceased employees. He furnished certain details in the said
\naffidavit.\n<\/p>\n
A counter affidavit was filed by the Bank to the said additional affidavit
\ndenying the averments and allegations and also furnishing all the details
\nas to how the competent authority had declined to give compassionate
\nappointment to the respondent. Similarly placed persons were offered with
\ncompassionate appointment according to the appellant is not true and in
\nsupersession of the scheme for appointment of dependants of the deceased
\nemployees on compassionate grounds circulated by staff ciruclar No. 4341
\ndated 19.02.1997 the Bank had formulated a new scheme for compassionate
\nappointment\/relief to dependant of the deceased employees and circulated
\nthrough staff circular No. 4989 dated 22.07.2003 which scheme was
\nimplemented with effect from 30.05.2003. The Bank has also explained the
\ncirucmstances undder which one Smt. Thangan Mohan was granted the benefits
\nof compassionate appointment and also to Ms. Razna who died in harness
\nwhile in the service of the Bank. It was also submitted that the persons of
\nthe choice of the Bank were not granted employment as alleged by the
\nrespondent and that the offer of lump sum financial assistance was on the
\nbasis of the new scheme and that the Bank never treated the respondent in a
\ndiscriminatory manner and that no such consideration or preference
\nprevailed with the Bank as alleged by the respondent.\n<\/p>\n
When the matter was pending in this Court, a rejoinder affidavit on behalf
\nof the Bank was filed. The total amount sanctioned under different benefits
\nand credited into the savings bank a\/c No. 7088 in the name of the mother
\nof the respondent at Kannur Branch of the Bank in the following manner.\n<\/p>\n
Sr. No.\tDate\tParticulars\tAmount<\/p>\n
i.\t24.8.2001\tDeath Relief Fund\tRs. 22,500.00<\/p>\n
ii\t6.10.2001\tLIC (group policy)\tRs. 67,226.00<\/p>\n
iii\t1.11.2001\tLIC (group policy)\tRs. 1,12,516.00<\/p>\n
iv\t29.11.2001\tEmployees Provident Fund\tRs. 1,75,666.64<\/p>\n
v\t12.12.2001\tGratuity\tRs. 1,83,001.70<\/p>\n
vi\t15.1.2002\tLeave Encashment\tRs. 57,849.00<\/p>\n
vii\t18.4.2002\tSBS\tRs. 99,993.75<\/p>\n
\t\tTotal\tRs. 7,18,753.09<\/p>\n
Out of the above amount a sum of Rs. 1,03,754\/- was adjusted towards the
\nbalance housing loan taken by the deceased employee and a sum of Rs.
\n67,502\/- was adjusted towards the other pending loans leaving a net sum of
\nRs. 5,47,495\/- in the hands of the widow of the deceased. In fact an
\nadditional sum of Rs. 17,699\/- was further paid by the staff members of
\nbank which was sent by a demand draft number 093408 dated 4.10.2002 though
\nthe same was not pleaded. The said widow placed a sum of Rs. 5,25,00\/- in
\nthe fixed deposit in the same branch. The allegation that only a sum of Rs.
\n74.910 was left with the bereaved family is totally wrong. The widow of the
\ndeceased employee was sanctioned pension of Rs. 4,468\/- at the time of the
\ndeath and the said pension amount at the time of filing of this petition
\nwas Rs. 5,176 per month. It is pertinent to mention that the family gets a
\nrecurring income on the net terminal benefits of Rs. 5,47,495\/- when the
\nsame are invested in any of the investment scheme. The monthly interest
\nincome on the said lump sum benefit at the rate of 9% was calculated to be
\nRs. 4,106\/-. This coupled with the pension of Rs. 4,468\/- at the time of
\nconsideration of his application (Rs. 5,176\/- at the time of filing of the
\npetition) can yield total recurring monthly income of Rs. 8,754\/-which was
\nmuch more that the last drawn net monthly salary of the deceased employee.
\nThe last drawn salary of the deceased employee after deductions was Rs.
\n7,477.50 only. Moreover the deceased employee had constructed a house after
\ntaking loan and the said loan, as aforesaid, also stood repaid. Therefore,
\nthe respondent was not found eligible for compassionate employment on the
\nfinancial parameter. The competent authority of the bank had to consider
\nthe case of the petitioner as per the laid down parameters more
\nparticularly mentioned in the petition and the recurrent income derivable
\nby the family. All these factors weighed in the minds of the competent
\nauthority while deciding the case for compassionate employment.\n<\/p>\n
From the foregoing facts and circumstances, it is seen that the
\nrespondent’s case was considered under the old scheme and not under the new
\nscheme which came in later and in any case the respondent is not entitled
\nto claim relief under the new scheme also because the financial status of
\nthe family is much above the criterion fixed in the new scheme. It is also
\npertinent to mention that in the new scheme only the widow is entitled for
\ncompassionate employment and not the offspring like the respondent. The
\nrespondent, in any case, is dis-entitled to seek employment under the new
\nscheme. The recent development is that the scheme of compassionate
\nemployment has been completely scrapped in the appellant-Bank w.e.f.
\n21.12.2005 as circulated vide staff circular 5236 dated 29.12.2005. The
\nBank has also specifically denied the averment that the Bank has given
\nemployment to the persons who have recieved financial assistance.\n<\/p>\n
Learned counsel for the respondent contended that the Bank has made several
\ncompassionate appointments quite contrary to the scheme and, therefore, the
\nrespondent should also be considered for such appointment on compassionate
\ngrounds. It is well settled that Article 14 cannot be extended to legalize
\nillegal orders though others had wrongly got the benefits of that order on
\nsome stray incidents earlier.\n<\/p>\n
This Court in Harpal Kaur Chahal (Smt) v. Director, Punjab Instructions,
\nPunjab and Anr.,<\/a> [1995] Supp 4 SCC 706 held that illegality once committed
\ncannot be pleaded to legalize other illegal acts. This Court also held that
\nwhere the High Court applying a wrong test found certain ineligible
\ncandidates to be eligible and upheld their appointment, such a judgment
\ncould not constitute a ground for this Court to extend the benefit thereof
\nto other candidates appointed illegally.\n<\/p>\n
In Gursharan Singh v. New Delhi Municipal Committee, AIR<\/a> (1996) SC 1175,
\nthis Court held as under:\n<\/p>\n
“The guarantee of equality before law is a positive concept and it cannot
\nbe enforced by a citizen or Court in a negative manner. To put it in other
\nwords, if an illegality or irregularity has been committed in favour of any
\nindividual or a group of individuals, the others cannot invoke the
\njurisdiction of the High Court or of the Supreme Court, that the same
\nirregularity or illegality be committed by the State or an authority which
\ncan be held to be a State or an authority of the Constitution, so far such
\npetitioners are concerned, on the reasoning that they have been denied the
\nbenefits which have been extended to others although in an irregular or
\nillegal manner. Such petitioners can question the validity of orders which
\nare said to have been passed in favour of persons who were not entitled to
\nthe same but they cannot claim orders which are not sanctioned by law in
\ntheir favour on principle of equality before law. Neither Art. 14 of the
\nConstitution conceives within the equality clause this concept nor Art. 226
\nempowers the High Court to enforce such claim of equality before law. If
\nsuch claims are enforced, it shall amount to directing to continuance and
\nperpetuate an illegal procedure or an illegal order for extending similar
\nbenefits to others. Before a claim based on equality clause is upheld, it
\nmust be established by the petitioner that his claim being just and legal,
\nhas been denied to him, while it has been extended to others and in this
\nprocess there has been a discrimination.”\n<\/p>\n
In Umesh Kumar Nagpal v. State of Haryana and Ors., (Supra) this Court
\nconsidered a case of compassionate appointment and the factors necessary
\nfor being taken into account before offering compassionate appointment.
\nThis Court held that merely death of an employee does not entitle his
\nfamily to compassionate employment and that the authority concerned must
\nconsider as to whether the family of the deceased employee is unable to
\nmeet the financial crisis resulting from the employee’s death. This Court
\nalso held as under:\n<\/p>\n
“The whole object of granting compassionate employment is to enable the
\nfamily to tide over the sudden crisis. The object is not to give a member
\nof such family a post much less a post for post held by the deceased. What
\nis further, mere death of an employee in harness does not entitle his
\nfamily to such source of livelihood. The Government or the public authority
\nconcerned has to examine the financial condition of the family of the
\ndeceased, and it is only if it is satisfied, that but for the provision of
\nemployment, the family will not be able to meet the crisis that a job is to
\nbe offered to the eligible member of the family. The posts in Classes III
\nand IV are the lowest posts in non-manual and manual categories and hence
\nthey alone can be offered on compassionate grounds, the object being to
\nrelieve the  family, of the financial destitution and to help it get over
\nthe emergency.”\n<\/p>\n
In General Manger (D&PB) and Ors. v. Kunti Tiwary and Anr., (Supra), the
\nChief General Manager of the Bank rejected the application for
\ncompassionate appointment on the ground that the financial condition of the
\nfamily could not be termed as to be penurious challenging this order of
\nrejection the respondent filed a writ petition which was rejected by the
\nlearned Single Judge but the Division Bench, however, overturned the
\ndecision of the learned Single Judge and allowed the appeal and
\nconsequently directed the appellant-Bank to appoint the respondent in
\naccordance with its policy. This Court held as under:\n<\/p>\n
6. “The policy in question was framed by the appellant Bank pursuant to the
\ndecision of this Court in Umesh Kumar Nagpal v. State of Haryana where this
\nCourt has said that appointment by way of compassionate appointment is an
\nexception carved out of the general rule for appointment on the basis of
\nopen invitation of application and merit. This exception was to be resorted
\nto in cases of penury where the dependents of an employee are left without
\nany means of livelihood and that unless some source of livelihood was
\nprovided a family would not be able to make both ends meet.\n<\/p>\n
7. In adoption of this principle, an office memorandum was circulated to
\nall banks on 7-8-1996 emphasising that the observations of this Court
\nwhould have to be complied with. The Indian Banks’ Association also adopted
\nthe directive of this Court in Umesh Kumar Nagpal case in the Scheme which
\nwas proposed for appointment of heirs of deceased employees. In that
\nproposal it was recommended that in order to determine the financial
\ncondition of the family the following amounts would have to be taken into
\naccount:\n<\/p>\n
(a)\tFamily pension.\n<\/p>\n
(b)\tGratuity amount received.\n<\/p>\n
(c)\tEmployee’s\/employer’s contribution to provident fund.\n<\/p>\n
(d)\tAny  compensation paid by the Bank or its Welfare fund.\n<\/p>\n
(e)\tProceeds of LIC  policy and other investments of the deceased
\nemployee.\n<\/p>\n
(f)\tIncome of family from other sources.\n<\/p>\n
(g)\tEmployment of other family members.\n<\/p>\n
(h)\tSize of the family and liabilities, if any, etc.<\/p>\n
(8)\tThis recommendation of the Indian Bank Association was accepted in
\nthe Scheme which was finally formulated on 1-1-1998  where the same
\ncriteria for determining the financial condition of the family was laid
\ndown. It may be noted that the express language for appointment on
\ncompassionate grounds reads as follows:\n<\/p>\n
\t“Appointments in the public services are made strictly on the basis
\n\tof open invitiation of applications and merit. However, exception
\n\tdying in harnness and leaving their family in penury and without
\n\tany means of livelihood.\n<\/p>\n
Punjab National Bank and Ors. v. Ashwini Kumar Taneja, (Supra). This<\/a> civil
\nappeal was filed by the PunjabNational Bank in this Court against the High
\nCourt judgment. The compassionate appointment sought by the respondent was
\ndenied by  the Bank on the ground that there was no financial hardship to
\nthe family as they had received substantial amount after the death of the
\nrespondent’s father. The High Court directed the respondent-Bank to
\nconsider his case for compassionate appointment. The High Court further
\nheld that the retiral benefits received by the heirs of the deceased
\nemployee would not justify the rejection of the application for
\ncompassionate appointment the bank then filed the present appeal the
\nappellant’s contended that the approach of the High Court was erroneous and
\nkeeping in view the object of compassionate appointment with reference to
\nthe amounts received by the heirs of the deceased there was no financial
\nhardship.\n<\/p>\n
Allowing the appeal, this Court held:\n<\/p>\n
“Appointment on compassionate ground is not a source of recruitment but
\nmerely an exception to the requirement of making appointments on open
\ninvitation of application on merits. Basic intention is that on the death
\nof the employee concerned his family is not deprived of the means of
\nlivelihood. The object is to enable the family to get over sudden financial
\ncrisis.\n<\/p>\n
The High Court’s view that the retiral benefits were not to be taken into
\nconsideration while dealing with request for compassionate appointment is
\ncontrary to the decision in Kunti Tiwary case, [2004] 7 SCC 271. In the
\ninstant case, there was a scheme called “Scheme for Employment of the
\nDependants of the Employees Who Die While in the Service of the Bank-
\nService on Compassionate Grounds” opertaing in the appellant Bank which
\nprovided for considering the case for compassionate appointment provided
\nthe family was without sufficient means of livelihood specially keeping in
\nview: family pension, gratuity, provident fund and the amounts recieved
\nunder various other specified heads. Therefore the view taken by the High
\nCourt cannot be sustained.”\n<\/p>\n
Learned counsel for the respondent cited the decision in Balbir Kaur v.
\nSteel Authority of India (Supra)<\/a> which also deals with compassionate
\nappointment. In this case, this Court held that the family benefit scheme
\nassuring monthly payment to the family of the deceased employee was not a
\nsubstitute for compassionate appointment and, therefore, compassionate
\nappointment could not therefore, be denied on the ground that the family
\nbenefit scheme was available and that non-payment of gratuity and provident
\nfund to the family at the time of death of the employee runs counter to the
\nobject of the beneficial legislation contained in the payment of gratuity
\nAct and the employees provident fund and Miscellaneous Provisions Act, 1952
\nand that lump sum payment of provident fund is an insulating factor for the
\nfamily to cope with the situation arising out of death of the employees.
\nThis Court also held that the socialistic pattern of society as envisaged
\nin the constitution has to be attributed its full meaning and that the law
\ncourts cannot be a mute spectator where relief is denied to the horrendous
\nsufferings of a family which has lost its bread winner and the
\nconstitutional philosophy should be allowed to become part of every man’s
\nlife and then only the constitution can reach everyone. This is a general
\nobservation made by this Court in the context of compassionate appointment.
\nThe above judgment, in our view, is distinguishable on facts and on law.
\nThis apart the case on hand is directly covered by the scheme formulated by
\nthe Bank in regard to the compassionate appointment.\n<\/p>\n
In the present case, by declining the application submitted by the
\nrespondent after the proper consideration of the same in the light of the
\nrelevant parameters the appellant-Bank cannot be said to have acted in an
\narbitrary manner regardless of the constitutional principles.\n<\/p>\n
It is also settled law that the specially constituted authorities in the
\nrules or regulations like the competent authority in this case are better
\nequipped to decide the cases on facts of the case and their objective
\nfinding arrived on the appreciation of the full fact should not be
\ndisturbed. Learned Single Judge and the Division Bench by directing
\nappointment has fettered the discretion of the appointing and selecting
\nauthorities the Bank had considered the application of the respondent in
\nterms of the statutory scheme framed by the Bank for such appointment.
\nAfter that even though the Bank found the respondent ineligible for
\nappointment to its service, the High Court has found him eligible and has
\nordered his appointment. This is against the law laid down by this Court.
\nIt is settled law that the principles regarding compassionate appointment
\nthat compassionate appointment being an exception to the general rule the
\nappointment has to be exercised only in warranting situations and
\ncircumstances existing in granting appointment and guiding factors should
\nbe financial condition of the family. The respondent is not entitled to
\nclaim relief under the new scheme beacuse the financial status of the
\nfamily is much above the criterion fixed in the new scheme.\n<\/p>\n
In the result, the appeal is allowed and the orders passed by the learned
\nSingle Judge and of the Division Bench are set aside. However, there will
\nbe no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Union Bank Of India And Ors vs M.T. Latheesh on 18 August, 2006 Author: . A Lakshmanan Bench: Dr. Ar. Lakshmanan, Tarun Chatterjee CASE NO.: Appeal (civil) 3548 of 2006 PETITIONER: Union Bank of India and Ors. RESPONDENT: M.T. Latheesh DATE OF JUDGMENT: 18\/08\/2006 BENCH: Dr. AR. Lakshmanan & Tarun Chatterjee […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-160115","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nUnion Bank Of India And Ors vs M.T. 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