Allowed

The Chairman v. v Mallikarjuna

Andhra Pradesh HC1 Sept 2021WA/387/2021

Case brief

AI extract

What is this about?

Writ petition challenging rejection of compassionate appointment claim was dismissed as petitioner's father's death did not fall under exceptional circumstances mooted in SBI Scheme-2014, even though death occurred within five-year time limit.

What did the court decide?

Order of single judge setting aside impugned order was set aside; writ appeal allowed; respondent permitted to apply for ex-gratia lumpsum amount.

The Chairman Vs v Mallikarjuna — Pension and Retirement Benefits | Andhra Pradesh HC (2021)

¶1

IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI HON’BLE Mr. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE

¶2

¶3

HON’BLE Mr. JUSTICE NINALA JAYASURYA

¶4

WRIT APPEAL No.387 of 2021

¶5

(Through Video-Conferencing)

¶6

The Chairman, State Bank of India, State Bank Bhawan, Madame Cama Road, Mumbai – 400 021, and others

¶7

… Appellants Versus

¶8

V. Mallikarjuna, S/o. late V. Narasimha, Aged 39 years, R/o.H.No.1/339/33A, Arun Jyothi Nagar, Adoni – 518 301, Kurnool District, Andhra Pradesh … Respondent

¶9

Counsel for the appellants	: Mr. Venkata Rama Rao Kota
Counsel for the respondent	: Mr. K. Sudhakar Reddy
Date of hearing	: 09.08.2021
Date of judgment	: 01.09.2021

¶10

JUDGMENT

¶11

(Arup Kumar Goswami, CJ)

¶12

This writ appeal is presented against a judgment dated 16.04.2021 passed by the learned single Judge in W.P.No.1159 of 2016 disposing of the writ petition by setting aside order No. (HR-1) 278 dated 08.05.2015 and directing the respondents (appellants herein) to consider the claim of the writ petitioner for compassionate appointment in any suitable post within a period of six weeks from the date of receipt of the order.

¶13

2. Heard Mr. Venkata Rama Rao Kota, learned counsel for the appellants and Mr. K. Sudhakar Reddy, learned counsel for the respondent/writ petitioner.

¶14

HCJ & NJS,J W.A.No.387 of 2021

¶15

¶16

3. The father of the writ petitioner died in harness on 26.11.2012 while working as Head Messenger in Market Yard Branch of State Bank of India, Adoni Branch, leaving behind his wife, three sons including the writ petitioner and two unmarried daughters. They belong to Scheduled Caste community. Subsequent to the death of his father, the writ petitioner made a representation dated 20.01.2013 to respondent No.4 (appellant No.4) for compassionate appointment and the mother of the writ petitioner had also made a representation to the Assistant General Manager, SBI/Tirupati, praying for appointment of the writ petitioner on compassionate ground. The writ petitioner had also made a representation dated 05.05.2014 to respondent No.1 (appellant No.1). In response to the said representation dated 05.05.2014, it was informed to the writ petitioner by a letter dated 03.11.2014 that the scheme for compassionate appointment was discontinued with effect from 04.08.2005 and the same was replaced by a scheme called “Scheme for payment of Ex-gratia amount in lieu of appointment on Compassionate grounds” and, accordingly, advised the writ petitioner to submit application in the prescribed format for payment of ex-gratia. On being approached by the writ petitioner, the case of the writ petitioner was espoused by All India Scheduled Castes and Scheduled Tribes Bank Employees’ Federation (R) by addressing a letter dated 27.01.2015 requesting compassionate appointment in favour of the writ petitioner. The said representation was disposed of by order dated 08.05.2015, which came to be impugned in the writ petition.

¶17

4. By the aforesaid order dated 08.05.2015, it was communicated as follows:

¶18

“a) The scheme for compassionate appointment has been discontinued in the Bank from 04.08.2005 and it was replaced by the Scheme for payment of ex-gratia lumpsum amount.

¶19

HCJ & NJS,J W.A.No.387 of 2021

¶20

¶21

b) As such, your representation for compassionate appointment cannot be considered as the same was discontinued from 04.08.2005.

¶22

c) As regards the judgment of 1989 quoted in the representation, this was prior to 04.08.2005 and hence not relevant in the present context.

¶23

d) The revised scheme for Compassionate Appointment in exceptional cases, effective from 05.08.2014 is not applicable to the present case as the date of death (i.e., 26.11.2012) was prior to 05.08.2014.”

¶24

5. In the affidavit filed by the appellants to the writ petition, it is pleaded that the scheme called “SBI Scheme for Compassionate Appointment on compassionate ground in exceptional cases-2014” (for short, “the Scheme2014”) was issued by the bank vide e-Circular No.CDO/P&HRDPM/65/2014-15 providing that only in exceptional circumstances, compassionate appointment has to be provided. It is reiterated that the Scheme-2014 for compassionate appointment in exceptional cases effective from 05.08.2014 is not applicable, as father of the writ petitioner died on 26.11.2012 and, that apart, the case does not fall under the category of exceptional case as specifically envisaged in the revised scheme. The bank had introduced “Scheme for Payment of Ex-Gratia Lumpsum Amount” with effect from 04.08.2005 in lieu of compassionate appointment. However, as the Government had advised all public sector banks to have both the Schemes, viz., compassionate appointment and payment of ex-gratia lumpsum amount, the appellant-bank had decided to continue the scheme for compassionate appointment in exceptional cases.

¶25

HCJ & NJS,J W.A.No.387 of 2021

¶26

¶27

6. The learned single Judge relied on para 11.2 of the Scheme-2014 which provides that the request for compassionate appointment in exceptional cases may be considered even when the death of the employee took place long back and, accordingly, held that the case of the writ petitioner ought to have been considered by the appellants for compassionate appointment. The learned single Judge opined that the decisions in Indian Bank and others v. Promila and another , reported in (2020) 2 SCC 729, Canara Bank and another v. M. Mahesh Kumar , reported in (2015) 7 SCC 412 , State of Himachal Pradesh and another v. Parkash Chand , reported in (2019) 4 SCC 285 , are not applicable to the facts and circumstances of the case and relied on the decisions in Balbir Kaur & Anr v. Steel Authority of India Ltd., & Ors. , reported in (2000) 6 SCC 493 and State Bank of India v. Raj Kumar , reported in (2010) 11 SCC 661 .

¶28

7. In paragraphs 19, 20 & 21, the learned single Judge observed as follows:

¶29

“19) In the present case, the father of petitioner worked as Head Messenger in the respondent Bank. He died in harness leaving behind wife, three sons and two unmarried daughters. After considering the post held by the deceased and the number of the members of the family he has to maintain, one can understand the financial position of that family. Due to sudden demise of the bread winner of the family, the family of the deceased employee has to face serious financial problems. The respondent Bank formulated the SBI Scheme for compassionate appointment on compassionate ground in exceptional cases-2014 with a laudable object of granting compassionate appointment in such

¶30

HCJ & NJS,J W.A.No.387 of 2021

¶31

¶32

exceptional cases is to enable the family to tide over the sudden crisis due to the death of a bread winner.”

¶33

20) As and when the respondent Bank introduced such scheme for the benefit of family members of the deceased employees, rejecting the claim of the petitioner by the respondent authorities on the ground that the petitioner is not entitled for compassionate appointment is unjustified.

¶34

21) In view of the procedure provided at para No.11.2 of the scheme and by following the judgment of the Hon’ble Apex Court in the case of Rajkumar (1 supra), this Court is of the considered opinion that rejecting the claim of the petitioner for compassionate appointment is against to the scheme provided by the respondent Bank. As such, we hold that the impugned order No.(HR-1) 278, dated 08.05.2015 issued by the 3^rd respondent is illegal, arbitrary and unjust.”

¶35

8. It is to be noticed that the scheme for appointment of dependents of the deceased employees was originally introduced in the Bank with effect from 01.01.1979 with amendments and modifications being carried out from time to time.

¶36

9. At this juncture, it will be appropriate to extract relevant portion of the “SBI Scheme for Payment of Ex-Gratia Lumpsum Amount”:

¶37

“This Scheme for appointment of dependents of employees dying in harness/retired on medical grounds has been throwing up some unanticipated problems for the Bank as also for the dependent family members. While the Bank does not generally get employees who satisfy the requirements of working in computerised environment, many a time, the families of our

¶38

HCJ & NJS,J W.A.No.387 of 2021

¶39

¶40

deceased employees also do not get immediate support because the process of employment takes some time. In some cases, no dependent of the deceased employee is eligible to take up the job immediately and as such, there is no immediate support to the dependent family.

¶41

To overcome these problems, immediately monetary assistance in lieu of compassionate appointment may be the best alternative. The Executive Committee of the Central Board in its meeting held on 4^th August, 2005 has approved a scheme for payment of ex-gratia lumpsum amount in lieu of appointment on compassionate grounds named as “SBI Scheme for Payment of Ex-Gratia Lumpsum Amount”. The new Scheme has come into force with effect from today i.e. 4^th August, 2005. This scheme will replace our existing Compassionate Appointment Scheme (referred in paragraph 1 above) and no request for compassionate appointment shall be entertained or considered by the Bank under any circumstance with effect from today i.e. 4^th August, 2005.

¶42

We enclose, for your information and necessary action our scheme for payment of ex-gratia lumpsum amount named “SBI Scheme for Payment of Ex-Gratia Lumpsum Amount”. The Scheme will be applicable in the following cases:

¶43

i) Employees dying in harness,

¶44

ii) Employees seeking premature retirement due to incapacitation before reaching the age of 55 years”.

¶45

10. From Clause 2 under the head “Background” of the Scheme-2014, it appears that on and from 04.08.2005, two schemes, both dated 04.08.2005,

¶46

HCJ & NJS,J W.A.No.387 of 2021

¶47

¶48

one under the name and style of SBI Scheme for Compassionate Appointment in Exceptional Circumstances and the other, SBI Scheme for Payment of Ex-Gratia Lumpsum Amount in lieu of Compassionate Appointment, were parallelly being followed. It appears that SBI Scheme for Compassionate Appointment in Exceptional Circumstances was retrospectively made effective from 04.08.2005, the date on which the SBI Scheme of Payment of Ex-gratia Lumpsum Amount replaced the earlier scheme of compassionate appointment, vide e-Circular dated 13.05.2011. SBI Scheme for Compassionate Appointment in Exceptional Circumstances is applicable where an employee dies while performing official duty, as a result of violence, terrorism, robbery or dacoity or where an employee dies within five years of first appointment or before reaching the age of 30 years, which is latter, leaving a dependent spouse and/or minor children. The SBI Scheme for Payment of Ex-Gratia Lumpsum Amount was modified and both the Scheme-2014 and modified SBI Scheme for Payment of Ex-Gratia Lumpsum Amount in lieu of Compassionate Appointment were effective from 05.08.2014.

¶49

11. For the purpose of this case, it is not necessary to dilate into the various provisions of the Scheme-2014. However, having regard to the contours of the controversy, it will be necessary to consider Clause 5 and Clause 11 of the Scheme-2014, which read as follows:

¶50

“5. COVERAGE

¶51

5.1. To a dependent family member of permanent employee of the Bank who

¶52

(i) dies while performing official duty, as a result of violence, terrorism, robbery or dacoity; or

¶53

HCJ & NJS,J W.A.No.387 of 2021

¶54

¶55

(ii) dies within five years of first appointment or before reaching the age of 30 years, whichever is latter, leaving a dependent spouse and/or minor children.

6. XXXXX

7. XXXXX

8. XXXXX

9. XXXXX

10. XXXXX

11. TIME LIMIT FOR CONSIDERING APPLICATIONS

¶62

11.1 Application for employment under the Scheme from eligible dependent will be considered upto five years from the date of death.”

¶63

11.2 Request for compassionate appointment under exceptional circumstances may be considered even when the death of the employee took place long back. While considering such belated requests, it should be kept in view that the concept of compassionate appointment under exceptional circumstances is largely related to the need for immediate assistance to the family of the employee in order to relieve it from economic distress. The very fact that the family has been able to manage somehow all these years should normally be taken as adequate proof that the family had some dependable means of subsistence. Therefore, examination of such cases would call for a great deal of circumspection. However, five years shall be the outside limit in all cases and no proposals for compassionate appointment of a dependent will be considered after five years from the date of death.”

¶64

HCJ & NJS,J W.A.No.387 of 2021

¶65

¶66

12. A combined reading of Clauses 11.1 and 11.2 would go to show that application for employment under the Scheme-2014 from eligible dependent would be considered upto five years from the date of death and no proposals for compassionate appointment of a dependent will be considered after five years from the date of death. When five years is said to be the outer limit in all cases, first sentence in Clause 11.2 to the effect that request for compassionate appointment in exceptional circumstances may be considered even when death of the employee took place long back gives a misleading impression that compassionate appointment under exceptional circumstances may be considered even beyond five years.

¶67

13. When the father of the writ petitioner died on 26.11.2012, SBI Scheme for Compassionate Appointment in Exceptional Circumstances as circulated vide e-Circular dated 13.05.2011, was in force. However, not even a reference was made to the revised Scheme for Compassionate Appointment in Exceptional Cases as notified vide e-Circular dated 13.05.2011, with effect from 04.08.2005, though the aforesaid scheme of compassionate appointment was applicable. When the order of rejection was communicated on 03.11.2014, e-Circular dated 27.12.2014 forwarding the Scheme-2014 had not come into being.

¶68

14. A perusal of the letter dated 08.05.2015 goes to show that the ostensible reason for not considering the case of the writ petitioner was that the scheme for compassionate appointment was discontinued from 04.08.2005 and it was replaced by the Scheme for Payment of Ex-gratia Lumpsum Amount. The revised Scheme for Compassionate Appointment on Compassionate Grounds in exceptional cases, effective from 05.08.2014 was held to be not applicable as the date of death of the father of the writ petitioner was 26.11.2012, which was prior to 05.08.2014.

¶69

HCJ & NJS,J W.A.No.387 of 2021

¶70

¶71

15. In Raj Kumar (supra), the Hon’ble Supreme Court observed that it is well settled that appointment on compassionate grounds is not a source of recruitment and that it is an exception to the general rule that recruitment to public services should be on the basis of merit by 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. In M. Mahesh Kumar (supra), the Hon’ble Supreme Court held that cause of action to be considered for compassionate appointment arose when the particular ‘Dying in Harness Scheme’ dated 08.05.1993 in that case was in force, under which the writ petitioner therein was not found to be eligible for compassionate appointment. The Hon’ble Supreme Court held that his case could not be considered as per the subsequent scheme, which came into being in 2005 providing for ex-gratia payment. In Promila (supra), the Hon’ble Supreme Court reiterated the proposition laid down in M. Mahesh Kumar (supra) that relevant scheme prevalent on the date of demise of the employee is applicable.

¶72

16. In Parkash Chand (supra), the Hon’ble Supreme Court reiterated that compassionate appointment is not a matter of right, but must be governed by the terms on which the State lays down the policy of offering employment assistance to a member of the family of a deceased government employee.

¶73

HCJ & NJS,J W.A.No.387 of 2021

¶74

¶75

17. In State of Madhya Pradesh v. Amit Shrivas (Civil Appeal No.8564 of 2015), the issue was, whether a junior work charged employee would be entitled to compassionate appointment. The High Court had directed consideration of the case of the writ petitioner for compassionate appointment. His claim for compassionate appointment was rejected by the Hon’ble Supreme Court on the ground that he was not a regular Government employee within the meaning of Rule 2(b) of the Madhya Pradesh Civil Service Conduct Rules, 1965. It was observed by the Hon’ble Supreme Court that High Court had lost sight of the distinction between a permanent status and a regular status.

¶76

18. In N.S. Santhosh v. State of Karnataka & ors. , (Civil Appeal Nos.9280-9281 of 2014), the Hon’ble Supreme Court observed as follows:

¶77

“A two judges bench headed by Justice Uday U. Lalit noticed the Supreme Court’s view in SBI vs. Raj Kumar (supra) and MCB Gramin Bank vs. Chakrawarti Singh (supra) on one side and the contrary view in Canara Bank & Anr. vs. M. Mahesh Kumar (supra) and felt the necessity of resolution of the conflicting question on whether the norms applicable on the date of death or on the date of consideration of application should apply. Accordingly, in State Bank of India & Ors. vs. Sheo Shankar Tewari the Court referred the matter for consideration by a larger Bench so that the conflicting views could be reconciled.

¶78

Applying the law governing compassionate appointment culled out from the above cited judgments, our opinion on the point at issue is that the norms, prevailing on the date of consideration of the application, should be the basis for consideration of claim for compassionate appointment. A dependent of a government

¶79

HCJ & NJS,J W.A.No.387 of 2021

¶80

¶81

employee, in the absence of any vested right accruing on the death of the government employee, can only demand consideration of his/her application. He is however disentitled to seek consideration in accordance with the norms as applicable, on the day of death of the government employee.”

¶82

19. The exceptional circumstances under which compassionate appointment can be granted under both e-Circular dated 27.12.2014 and e-Circular dated 13.05.2011 being same, controversy as to whether norms applicable on the date of death or on the date of consideration should apply will not really impact the case of the petitioner. In terms of the decision in N.S. Santhosh (supra), however, the ground shown that the revised scheme for Compassionate Appointment in exceptional cases, effective from 05.08.2014 is not applicable to the present case as the date of death (i.e., 26.11.2012) was prior to 05.08.2014, cannot be sustained.

¶83

20. Though in paragraph 6 of the affidavit filed in support of the writ petition, it is stated that e-Circular was issued to all the branches of the State Bank of India stating that in exceptional circumstances, compassionate appointment has to be provided and that the respondents had not considered the case of the writ petitioner, it is not the case projected by the writ petitioner that his case comes within the parameters of exceptional circumstances, either under the e-Circular dated 27.12.2014 or under e-Circular dated 13.05.2011. The appellants in paragraph 4 of the affidavit had stated that the case of the writ petitioner does not fall under the category of exceptional circumstances as specifically envisaged in the e-Circular. Though the grounds of rejection did not say so, since the writ petitioner did not contend that his case fell within the parameters of the exceptional circumstances set-out under the aforesaid e-Circulars, the writ petitioner is

¶84

HCJ & NJS,J W.A.No.387 of 2021

¶85

¶86

not entitled to be considered under Scheme-2014 for compassionate appointment.

¶87

21. Reliance placed by the learned single Judge on paragraph 13 of Balbir Kaur (supra), in our considered opinion, is not attracted in the facts and circumstances of the case, inasmuch as request for compassionate appointment was denied only on the ground that the applicant therein was entitled to Family Benefit Scheme. The Hon’ble Supreme Court in Raj Kumar (supra), had categorically laid down that claim for compassionate appointment is traceable only to the scheme framed by the employer for such employment and there is no right whatsoever outside such scheme. When the Scheme(s) provided compassionate appointment only in exceptional circumstances as notified vide e-Circular dated 13.05.2011 and under Scheme-2014, unless the condition of exceptional circumstances is fulfilled, claim for compassionate appointment will not be tenable.

¶88

22. In view of the aforesaid discussion, the order of the learned single Judge is set aside. The writ appeal is allowed. The respondent/writ petitioner is, however, permitted to submit an application for payment of exgratia lumpsum amount in terms of SBI Scheme for Payment of Ex-Gratia Lumpsum Amount and in the event of filing of any such application, the same shall be considered within a period of two months from the date of such application. No order as to costs. Pending miscellaneous applications, if any, shall stand closed.

¶89

ARUP KUMAR GOSWAMI, CJ NINALA JAYASURYA, J

¶90

MRR

The Chairman v. v Mallikarjuna

Case brief

What is this about?

What did the court decide?

The Chairman v. v Mallikarjuna

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

The Project Director, Vs Tammareddy Ramesh

Yelavarthi Srinivasa Rao Vs Union of India

Yalamanchili Basaveswara Rao Vs Union of India

Potnuru Arun Kumar Vs the State of Andhra Pradesh

State of Andhra Pradesh Vs Sangam Milk Producers Company Limited.

Guntur District Milk Producers Sangam, Vs Sangam Milk Producers Company Limited