{"id":20335,"date":"2010-02-08T00:00:00","date_gmt":"2010-02-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-bank-of-india-anr-vs-raj-kumar-on-8-february-2010"},"modified":"2018-08-22T15:28:13","modified_gmt":"2018-08-22T09:58:13","slug":"state-bank-of-india-anr-vs-raj-kumar-on-8-february-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-bank-of-india-anr-vs-raj-kumar-on-8-february-2010","title":{"rendered":"State Bank Of India & Anr vs Raj Kumar on 8 February, 2010"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Bank Of India & Anr vs Raj Kumar on 8 February, 2010<\/div>\n
Author: R.V.Raveendran<\/div>\n
Bench: R.V. Raveendran, K.S. Radhakrishnan<\/div>\n
                                                                         Reportable\n\n\n                  IN THE SUPREME COURT OF INDIA\n\n                 CIVIL APPELLATE JURISDICTION\n\n                CIVIL APPEAL NO. 1641 OF 2010\n            [Arising out of SLP(C) No.28370 of 2008]\n\n\n\nSTATE BANK OF INDIA & ANR.                              ... APPELLANTS\n\n      VS.\n\nRAJ KUMAR                                               ... RESPNDENT\n\n\n\n                           O R D E R\n<\/pre>\n
R.V.RAVEENDRAN, J.\n<\/p>\n<\/p>\n
      Leave granted.      Heard the parties.\n<\/p>\n<\/p>\n
2.    The respondent’s father employed as a Messenger in<\/p>\n
the Appellant Bank, died on 1.10.2004. Respondent’s mother<\/p>\n
made applications dated 6.6.2005 and 14.6.2005 requesting<\/p>\n
for   his   appointment    on     compassionate    grounds.    When     the<\/p>\n
applications    were      being     processed     and   verified,       the<\/p>\n
compassionate appointment scheme was substituted by the<\/p>\n
“SBI Scheme for payment of ex-gratia Lumpsum Amount” with<\/p>\n
effect from 4.8.2005. The new scheme abolished the old
\n                                        2<\/span><\/p>\n
scheme for compassionate appointments and instead provided<\/p>\n
for payment of an ex gratia lumpsum amount as per its<\/p>\n
terms. Clauses 14 and 15 of the new scheme relevant for<\/p>\n
our purpose are extracted below:\n<\/p>\n
            “14.                    Date of effect of the
\n            Scheme and disposal of pending applications:\n<\/p><\/blockquote>\n
            ……….Applications pending  under    the
\n            Compassionate Appointment Scheme as on the
\n            date on which this new Scheme is approved by
\n            the Executive Committee of the Central Board
\n            will be dealt with in accordance with the
\n            new Scheme for payment of ex-gratia lumpsum
\n            amount provided they fulfill all the terms
\n            and conditions of this Scheme.\n<\/p><\/blockquote>\n
            15. Miscellaneous provisions of the Scheme<\/p>\n
                               x x x        x x x        x x x<\/p>\n
            vi. With effect from the date the “SBI
\n            Scheme for Payment of Ex-gratia Lumpsum
\n            Amount” comes into force the Bank’s scheme
\n            of   compassionate  appointments  shall  be
\n            deemed abolished\/withdrawn and no request
\n            for   compassionate  appointment  shall  be
\n            entertained or considered by the Bank under
\n            any circumstance.”\n<\/p><\/blockquote>\n
3.   As     the   old    scheme      came   to      be   abolished   and<\/p>\n
compassionate appointment was no longer permissible after<\/p>\n
the new scheme came into force, the Bank on 31.1.2006<\/p>\n
advised the family of the deceased to make an application<\/p>\n
under     the   new   scheme   for     ex-gratia     payment.    Feeling<\/p>\n
aggrieved, the respondent filed a writ petition before the
\n                                               3<\/span><\/p>\n
Allahabad High Court. A learned single Judge of the High<\/p>\n
Court by order dated 8.5.2008 directed the appellant to<\/p>\n
reconsider the case of the respondent for appointment on<\/p>\n
compassionate grounds, holding that the old scheme applied<\/p>\n
and the new scheme was only prospective in operation. The<\/p>\n
said order was affirmed by the Division Bench by order<\/p>\n
dated 1.9.2008, which is under challenge in this appeal by<\/p>\n
special leave.\n<\/p>\n
4.   Learned        counsel       for    the   Bank      submitted       that    even<\/p>\n
though    the      respondent’s         father     died    on    1.10.2004,      the<\/p>\n
application for compassionate appointment was made only in<\/p>\n
June 2005; that before the application could be processed,<\/p>\n
the compassionate appointment scheme was abolished and was<\/p>\n
replaced by a new scheme on 4.8.2005; and that therefore,<\/p>\n
the Bank was justified in calling upon the respondent to<\/p>\n
apply under the new ex-gratia scheme.\n<\/p>\n<\/p>\n
5.       On     the     other        hand,     learned         counsel     for    the<\/p>\n
respondent submitted that on the date of death of his<\/p>\n
father and on the date of making the application, the<\/p>\n
compassionate           appointment          scheme      was     in      force    and<\/p>\n
therefore,         he       was   entitled         to     be     considered       for<\/p>\n
compassionate appointment under the said scheme.<\/p>\n
6.   It       is      now     well      settled         that     appointment      on
\n                                         4<\/span><\/p>\n
compassionate grounds is not a source of recruitment. On<\/p>\n
the other hand it is an exception to the general rule that<\/p>\n
recruitment to public services should be on the basis of<\/p>\n
merit, by an open invitation providing equal opportunity<\/p>\n
to all eligible persons to participate in the selection<\/p>\n
process. The dependants of employees, who die in harness,<\/p>\n
do not have any special claim or right to employment,<\/p>\n
except by way of the concession that may be extended by<\/p>\n
the employer under the Rules or by a separate scheme, to<\/p>\n
enable the family of the deceased to get over the sudden<\/p>\n
financial crisis. The claim for compassionate appointment<\/p>\n
is therefore traceable only to the scheme framed by the<\/p>\n
employer    for   such      employment       and   there   is    no   right<\/p>\n
whatsoever outside such scheme. An appointment under the<\/p>\n
scheme can be made only if the scheme is in force and not<\/p>\n
after it is abolished\/withdrawn. It follows therefore that<\/p>\n
when    a   scheme     is   abolished,       any   pending      application<\/p>\n
seeking appointment under the scheme will also cease to<\/p>\n
exist, unless saved. The mere fact that an application was<\/p>\n
made when the scheme was in force, will not by itself<\/p>\n
create a right in favour of the applicant.\n<\/p>\n<\/p>\n
7.     Normally      the    three   basic     requirements       to   claim<\/p>\n
appointment under any scheme for compassionate appointment<\/p>\n
are: (i) an application by a dependent family member of
\n                                                5<\/span><\/p>\n
the deceased employee; (ii) fulfillment of the eligibility<\/p>\n
criteria prescribed under the scheme, for compassionate<\/p>\n
appointment; and (iii) availability of posts, for making<\/p>\n
such   appointment.       If    a    scheme         provides    for    automatic<\/p>\n
appointment to a specified family member, on the death of<\/p>\n
any employee, without any of the aforesaid requirements,<\/p>\n
it can be said that the scheme creates a right in favour<\/p>\n
of the family member for appointment on the date of death<\/p>\n
of the employee. In such an event the scheme in force at<\/p>\n
the time of death would apply. On the other hand if a<\/p>\n
scheme provides that on the death of an employee, if a<\/p>\n
dependent family member is entitled to appointment merely<\/p>\n
on making of an application, whether any vacancy exists or<\/p>\n
not,   and    without     the   need       to       fulfill    any   eligibility<\/p>\n
criteria, then the scheme creates a right in favour of the<\/p>\n
applicant, on making the application and the scheme that<\/p>\n
was    in    force   at   the       time    when       the    application    for<\/p>\n
compassionate appointment was filed, will apply. But such<\/p>\n
schemes are rare and in fact, virtually nil.<\/p>\n
8. Normal schemes contemplate compassionate appointment on<\/p>\n
an application by a dependent family member, subject to<\/p>\n
the    applicant     fulfilling            the       prescribed      eligibility<\/p>\n
requirements, and subject to availability of a vacancy for<\/p>\n
making the appointment. Under many schemes, the applicant
\n                                            6<\/span><\/p>\n
has only a right to be considered for appointment against<\/p>\n
a specified quota, even if he fulfils all the eligibility<\/p>\n
criteria; and the selection is made of the most deserving<\/p>\n
among    the   several     competing       applicants,       to    the   limited<\/p>\n
quota of posts available. In all these schemes there is a<\/p>\n
need    to    verify    the     eligibility     and    antecedents       of   the<\/p>\n
applicant or the financial capacity of the family. There<\/p>\n
is also a need for the applicant to wait in a queue for a<\/p>\n
vacancy to arise, or for a selection committee to assess<\/p>\n
the comparative need of a large number of applicants so as<\/p>\n
to     fill    a     limited      number    of    earmarked          vacancies.<\/p>\n
Obviously,         therefore,     there     can   be    no        immediate    or<\/p>\n
automatic appointment merely on an application. Several<\/p>\n
circumstances          having     a   bearing     on    eligibility,          and<\/p>\n
financial condition, upto the date of consideration may<\/p>\n
have to be taken into account. As none of the applicants<\/p>\n
under the scheme has a vested right, the scheme that is in<\/p>\n
force when the application is actually considered, and not<\/p>\n
the scheme that was in force earlier when the application<\/p>\n
was made, will be applicable. Further where the earlier<\/p>\n
scheme is abolished and the new scheme which replaces it<\/p>\n
specifically provides that all pending applications will<\/p>\n
be considered only in terms of the new scheme, then the<\/p>\n
new scheme alone will apply. As compassionate appointment<\/p>\n
is a concession and not a right, the employer may wind up
\n                                     7<\/span><\/p>\n
the scheme or modify the scheme at any time depending upon<\/p>\n
its   policies,    financial   capacity   and   availability   of<\/p>\n
posts.\n<\/p>\n<\/p>\n
9.    In this context we may usefully refer to the decision<\/p>\n
of this Court in Union of India vs. R. Padmanabhan<\/a> – 2003<\/p>\n
(7) SCC 270, wherein this Court observed :\n<\/p>\n<\/p>\n
         “That apart, being ex gratia, no right accrues to
\n         any sum as such till it is determined and awarded
\n         and, in such cases, normally it should not only be
\n         in terms of the Guidelines and Policy, in force,
\n         as on the date of consideration and actual grant
\n         but has to be necessarily with reference to any
\n         indications contained in this regard in the Scheme
\n         itself. The line of decisions relation to vested
\n         rights accrued being protected from any subsequent
\n         amendments may not be relevant for such a
\n         situation and it would be apposite to advert to
\n         the decision of this Court reported in State of
\n         Tamil Nadu vs. Hind Stone and Ors.<\/a> – 1981 (2) SCC\n<\/p><\/blockquote>\n
         205. That was a case wherein this Court had to
\n         consider the claims of lessees for renewal of
\n         their leases or for grant of fresh leases under
\n         the Tamil Nadu Minor Mineral Concession Rules,
\n         1959. The High Court was of the view that it was
\n         not open to the State Government to keep the
\n         applications filed for lease or renewal for a long
\n         time and then dispose them of on the basis of a
\n         rule which had come into force later. This Court,
\n         while reversing such view taken by the High Court,
\n         held that in the absence of any vested rights in
\n         anyone, an application for a lease has necessarily
\n         to be dealt with according to the rules in force
\n         on the date of the disposal of the application,
\n         despite the delay, if any, involved although it is
\n         desirable   to   dispose  of   the   applications,
\n         expeditiously.”\n<\/p><\/blockquote>\n
We may also refer to the decision of this Court in Kuldeep
\n                                                8<\/span><\/p>\n
Singh v. Govt. of NCT of Delhi [2006 (5) SCC 702] which<\/p>\n
considered the question of grant of liquor vend licences.<\/p>\n
This    Court        held     that       where        applications           required<\/p>\n
processing     and     verification           the    policy      which    should    be<\/p>\n
applicable is the one which is prevalent on the date of<\/p>\n
grant    and    not    the       one   which        was   prevalent          when   the<\/p>\n
application      was       filed.      This    Court       clarified         that   the<\/p>\n
exception to the said rule is where a right had already<\/p>\n
accrued or vested in the applicant, before the change of<\/p>\n
policy.\n<\/p>\n<\/p>\n
10.    In this case the employee died in October, 2004, the<\/p>\n
application was made only in June, 2005. The application<\/p>\n
was    not   even     by    the     respondent,           but    by    his    mother.<\/p>\n
Therefore,      it      was       necessary          to     ascertain         whether<\/p>\n
respondent      really       wanted      the        appointment,         whether     he<\/p>\n
possessed      the     eligibility,           and    whether       any     post     was<\/p>\n
available. Within two months of the application, the new<\/p>\n
scheme came into force and the old scheme was abolished.<\/p>\n
The    new   scheme     specifically           provided         that   all    pending<\/p>\n
applications     will       be    considered         under       the   new    scheme.<\/p>\n
Therefore it has to be held that the new scheme which came<\/p>\n
into force on 4.8.2005 alone will apply even in respect of<\/p>\n
pending applications.\n<\/p>\n
11.    The respondent relied upon the following observations
\n                                       9<\/span><\/p>\n
in State Bank of India v. Jaspal Kaur – 2007 (9) SCC 571<\/p>\n
to contend that he was entitled to be considered under the<\/p>\n
old   scheme   which   was     in   force    at    the    time    of     the<\/p>\n
application by his mother:\n<\/p>\n<\/p>\n
        “Finally in the fact situation of this case,
\n        Sri.   Sukhbir  Inder   Singh   (late),   Record
\n        Assistant (Cash & Accounts) on 01.08.1999, in
\n        the Dhab Wasti Ram, Amritsar branch, passed
\n        away. The respondent, widow of Sri. Sukhbir
\n        Inder    Singh   applied    for    compassionate
\n        appointment in the appellant Bank on 05.02.2000
\n        under the scheme which was formulated in 2005.
\n        The High Court also erred in deciding the
\n        matter in favour of the respondent applying the
\n        scheme formulated on 04.08.2005, when her
\n        application was made in 2000. A dispute arising
\n        in 2000 cannot be decided on the basis of a
\n        scheme that came into place much after the
\n        dispute arose, in the present matter in 2005.
\n        Therefore, the claim of the respondent that the
\n        income of the family of deceased is Rs. 5855\/-
\n        only, which is less than 40% of the salary last
\n        drawn by Late Shri. Sukhbir Inder Singh, in
\n        contradiction to the 2005 scheme does not hold
\n        water”.\n<\/p><\/blockquote>\n
The   said   observations    are    read    out    of   context    by    the<\/p>\n
respondent.    In   that     case   the     Bank    employee      died    on<\/p>\n
1.8.1999. Application was filed by the widow on 5.2.2000.<\/p>\n
The case of the widow was considered twice and the request<\/p>\n
for appointment on compassionate grounds was declined by<\/p>\n
taking into consideration the financial position\/capacity<\/p>\n
of the family. The High Court allowed the writ petition<\/p>\n
filed by the widow in 2004 on the ground that the terminal<\/p>\n
benefits of Rs.4,57,607\/- received by the family were not<\/p>\n
sufficient for the sustenance of the family. In an appeal
\n                                        1<\/span><\/p>\n
by the Bank, it was contended before this Court that in<\/p>\n
addition to Rs.4,57,607\/- paid as terminal benefits, the<\/p>\n
widow was getting Rs.2055\/- per month as family pension<\/p>\n
and that was not considered by the High Court. During the<\/p>\n
hearing before this court, the widow relied upon the new<\/p>\n
scheme   dated    4.8.2005   and    sought       additional     payment    in<\/p>\n
terms of the scheme. The above observations were made in<\/p>\n
the    context     of   rejecting     the        widow’s      request     for<\/p>\n
additional payment under the 2005 scheme. In fact, this<\/p>\n
court allowed the Bank’s appeal and dismissed the writ<\/p>\n
petition filed by the widow for additional benefits. The<\/p>\n
said observations, cannot therefore be of any assistance<\/p>\n
to    consider    the   applicability       of    the   old     scheme    for<\/p>\n
compassionate appointment vis-`-vis the new scheme for ex-<\/p>\n
gratia payment.\n<\/p>\n<\/p>\n
12.    The respondent was not entitled to be considered for<\/p>\n
compassionate      appointment.      The         High   Court     was     not<\/p>\n
justified in quashing the communication dated 31.1.2006 or<\/p>\n
in directing reconsideration of the case of the respondent<\/p>\n
for compassionate appointment.\n<\/p>\n<\/p>\n
13.    We therefore allow this appeal in part as follows:<\/p>\n
       (i)       The orders of the learned Single Judge and
\n                                      1<\/span><\/p>\n
             Division Bench are set aside.\n<\/p><\/blockquote>\n
     (ii)    The respondent and\/or his family may file a<\/p>\n
             fresh    application     under    the    new   scheme,    as<\/p>\n
             directed     by   the   Bank     in   its   letter     dated<\/p>\n
             31.1.2006.\n<\/p><\/blockquote>\n
     (iii)   The appellant Bank is directed to process such<\/p>\n
             application under the new scheme, if and when<\/p>\n
             made, and pay the lump sum ex gratia amount<\/p>\n
             due     in   terms      of    that      scheme,   to     the<\/p>\n
             beneficiaries,       within      four    months   of     the<\/p>\n
             receipt of the application.\n<\/p><\/blockquote>\n
                                            ____________________J.\n<\/p><\/blockquote>\n
                                                 (R.V. RAVEENDRAN)<\/p>\n
                                            ____________________J.<\/p><\/blockquote>\n
                                             (K. S. RADHAKRISHNAN)<\/p>\n
New Delhi;\n<\/p>\n
February 08, 2010.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Bank Of India & Anr vs Raj Kumar on 8 February, 2010 Author: R.V.Raveendran Bench: R.V. Raveendran, K.S. Radhakrishnan 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 […]<\/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-20335","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Bank Of India & Anr vs Raj Kumar on 8 February, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-bank-of-india-anr-vs-raj-kumar-on-8-february-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Bank Of India & Anr vs Raj Kumar on 8 February, 2010 - 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