# Authorized officer, Prathama U.P. Bank, Moradabad v. Smt. Manjeet Kaur

- **Citation:** (2023) 11 ILRA 475
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-17
- **Case number:** Special Appeal No. 541 of 2023
- **Bench:** Manoj Kumar Gupta, Donadi Ramesh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/authorized-officer-prathama-u-p-bank-moradabad-v-smt-manjeet-kaur-49362
- **Pages:** 7

## Headnote

Sri Ajay Kumar Mishra

A. Compassionate Appointment - Scheme
for
Appointment
on
Compassionate
Grounds/Payment
of
Ex
Gratia
-
Interpretation
of
Clause
8
-
Retrospective Application - Whether
Scheme dated 10.5.2019 applies to
deaths
occurring
before
its
enforcement on 01.03.2019 - Time
limit for application under Clause 8.1
and 8.2 - Whether five-year period for
filing application includes deaths prior
to Scheme's enforcement.

Held:
The
Scheme
for
Appointment
on
Compassionate
Grounds,
effective
from
01.03.2019, does not expressly provide for
retrospective application to cover deaths of
employees occurring before its enforcement.
Clause 8.1, which stipulates a five-year period
for
filing
applications,
applies
to
deaths
occurring when the Scheme was already in
force, not to deaths predating its introduction.
The interpretation in Chairman, Baroda U.P.
Bank Vs Jitendra (Special Appeal No. 270 of
2023),
holding
that
Clause
8.2
gives
retrospective
effect
to
the
Scheme,
is
inconsistent with Supreme Court judgments,
particularly
Secretary
to
Government
Department
of
Education
(Primary)
Vs
Bheemesh alias Bheemappa, which emphasize
that compassionate appointment is not a vested
right and is subject to the Scheme in force on
the date of death. Judicial opinion favors strict
construction of compassionate appointment
schemes as exceptions to normal recruitment.
Due to conflict with the Co-ordinate Bench
decision in Jitendra, the matter is referred to a
Larger
Bench
to
determine
whether
the
interpretation of Clause 8 in Jitendra is
sustainable
in
light
of
Supreme
Court
precedents. (Paras 12-16)

B. Reference to Larger Bench - Judicial
Propriety - Conflict of Interpretation - Coordinate Bench Decision.

Held: Where a Co-ordinate Bench decision
(Jitendra) interprets Clause 8 of the Scheme to
have
retrospective
effect,
but
such
interpretation conflicts with Supreme Court
rulings and another Single Judge decision
(Bechan Giri), judicial propriety requires the
issue to be resolved by a Larger Bench.
Question referred: "Whether the interpretation
given to Clause 8 of the Scheme dated
10.5.2019 in Chairman, Baroda U.P. Bank Vs
Jitendra and Others and analogous Schemes, is
sustainable in law, in view of judgment of
Supreme Court in Secretary to Government
Department of Education (Primary) and Others
Vs Bheemesh alias Bheemappa and other
judgments?" (Para 16)

Case Law Discussed:

## Text

11 All. Authorized officer, Prathama U.P. Bank, Moradabad Vs. Smt. Manjeet Kaur
475
approached this court so far and not to
any other candidate.
----------
 (2023) 11 ILRA 475
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.11.2023

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE DONADI RAMESH, J.

Special Appeal No. 541 of 2023
with
Spl.Appeal. No. 410 of 2023
&
Spl. Appeal Defective No. 536 of 2023

Authorized officer, Prathama U.P. Bank,
Moradabad ...Appellant
Versus
Smt. Manjeet Kaur ...Respondent

Counsel for the Appellant:
Sri Sachin Mishra

Counsel for the Respondents:
Sri Ajay Kumar Mishra

A. Compassionate Appointment - Scheme
for
Appointment
on
Compassionate
Grounds/Payment
of
Ex
Gratia
-
Interpretation
of
Clause
8
-
Retrospective Application - Whether
Scheme dated 10.5.2019 applies to
deaths
occurring
before
its
enforcement on 01.03.2019 - Time
limit for application under Clause 8.1
and 8.2 - Whether five-year period for
filing application includes deaths prior
to Scheme's enforcement.

Held:
The
Scheme
for
Appointment
on
Compassionate
Grounds,
effective
from
01.03.2019, does not expressly provide for
retrospective application to cover deaths of
employees occurring before its enforcement.
Clause 8.1, which stipulates a five-year period
for
filing
applications,
applies
to
deaths
occurring when the Scheme was already in
force, not to deaths predating its introduction.
The interpretation in Chairman, Baroda U.P.
Bank Vs Jitendra (Special Appeal No. 270 of
2023),
holding
that
Clause
8.2
gives
retrospective
effect
to
the
Scheme,
is
inconsistent with Supreme Court judgments,
particularly
Secretary
to
Government
Department
of
Education
(Primary)
Vs
Bheemesh alias Bheemappa, which emphasize
that compassionate appointment is not a vested
right and is subject to the Scheme in force on
the date of death. Judicial opinion favors strict
construction of compassionate appointment
schemes as exceptions to normal recruitment.
Due to conflict with the Co-ordinate Bench
decision in Jitendra, the matter is referred to a
Larger
Bench
to
determine
whether
the
interpretation of Clause 8 in Jitendra is
sustainable
in
light
of
Supreme
Court
precedents. (Paras 12-16)

B. Reference to Larger Bench - Judicial
Propriety - Conflict of Interpretation - Coordinate Bench Decision.

Held: Where a Co-ordinate Bench decision
(Jitendra) interprets Clause 8 of the Scheme to
have
retrospective
effect,
but
such
interpretation conflicts with Supreme Court
rulings and another Single Judge decision
(Bechan Giri), judicial propriety requires the
issue to be resolved by a Larger Bench.
Question referred: "Whether the interpretation
given to Clause 8 of the Scheme dated
10.5.2019 in Chairman, Baroda U.P. Bank Vs
Jitendra and Others and analogous Schemes, is
sustainable in law, in view of judgment of
Supreme Court in Secretary to Government
Department of Education (Primary) and Others
Vs Bheemesh alias Bheemappa and other
judgments?" (Para 16)

Case Law Discussed:

1. Canara Bank Vs M. Mahesh Kumar

2. S.B.I. Vs Jaspal Kaur

3. Indian Bank Vs Promila

4. N.C. Santosh Vs St. of Karn.

5. St. of Madhya Pradesh Vs Ashish Awasthi
476 INDIAN LAW REPORTS ALLAHABAD SERIES
6. S.B.I. Vs Raj Kumar

7. MGB Gramin Bank Vs Chakrawarti Singh

8. Secretary to Government Department of
Education
(Primary)
Vs
Bheemesh
@
Bheemappa

9. S.B.I. Vs Sheo Shankar Tewari

10. Bhawani Prasad Sarkar Vs U.O.I.

11. Umesh Kumar Nagpal Vs St. of Har Bechan
Giri Vs U.O.I.

12. Chairman, Baroda U.P. Bank Vs Jitendra

(Delivered by Hon'ble Manoj Kumar
Gupta, J. & Hon'ble Donadi Ramesh, J.)

1. The present batch of special
appeals is against orders of different dates
passed by learned Single Judges directing
the
appellant-Banks
to
consider
the
application of the contesting respondents
for appointment under the Dying-inHarness Scheme dated 10.5.2019.

2.

All
the
appeals
involve
interpretation of certain Clauses of the
Scheme so as to find out whether
applications
filed
for
compassionate
appointment by dependents of a deceased
employee of the Bank within a timespan of
five years prior to the date of enforcement
of the Scheme, would be covered under the
Scheme or not. Consequently, all the
appeals were heard together. However, for
sake of convenience, the facts in Special
Appeal (Defective) No. 468 of 2023
(Regular Number 541 of 2023) are being
taken note of in the instant order. These are
as follows: -

(i) The husband of the respondent died
on 19.1.2018 while in harness. At the
relevant time, there was no scheme for
appointment on compassionate grounds.
The Scheme came into force on 1.3.2019.

(ii) The Bank vide a Communication
dated 7.12.2021 informed the respondent
that it would not be possible to consider her
request for compassionate appointment as
her
husband
had
died
before
the
commencement of the Scheme on 1.3.2019.

(iii) The respondent challenged the
said order in the writ petition which has
been allowed by the order impugned
herein.
(iv) Learned Single Judge has taken the
view that under Clause 8 of the Scheme,
application for compassionate appointment
could be filed within five years of death of
an employee and therefore even if death
had taken place before commencement of
the Scheme, but application was filed
within five years from the date of death, it
would be covered under the Scheme.

3. Before we proceed further, it would
be useful to note the relevant Clauses of the
Scheme. The Scheme is known as "Scheme
for
Appointment
on
Compassionate
ground/Payment
of
Ex
gratia".
The
Government
of
India
letter
dated
31.12.2018 stipulated that "the Scheme
shall be effective from the date on which
the Board of RRB adopts the same".
Accordingly,
NABARD
advised
the
individual banks to adopt the same. Board
of different RRB's adopted the scheme on
different dates. In case of the appellant
bank, it became effective from 01.03.2019.

4. Under Clause 1, the persons
covered under the Scheme are mentioned,
which is as follows: -

"1. Coverage :

1.1 To a dependent family member of
permanent employee of the Bank who :
11 All. Authorized officer, Prathama U.P. Bank, Moradabad Vs. Smt. Manjeet Kaur
477

(a) Dies while in service (including
death by suicide).

(b) Is retired on medical grounds due
to incapacitation before reaching the age of
55 years.

(Incapacitation is to be certified by a
duly appointed Medical Board in a
Government Medical College/Government
District Head Quarters Hospitals/Panel of
Doctors nominated by the Bank for the
purpose).

1.2. For the purpose of Scheme
"employee" would mean and include only a
confirmed regular employee who was
serving full time or part time on scale
wages, at the time of death OR retirement
on medical grounds, before reaching age of
55 years and does not include any one
engaged on contract/ temporary/ casual or
any person who is paid on commission
basis."

5. Clause 8 of the Scheme stipulates
the
time
limit
for
considering
the
applications and it runs as follows: -

"8. Time Limit for Considering
Applications.

8.1 Application for employment under
the Scheme from eligible dependent should
normally be considered upto five years
from the date of death or retirement on
medical grounds and decision to be taken
on merit in each case.

8.2 However, Bank can consider
request for compassionate appointment
even when the death or retirement on
medical grounds of the employee took
place long back, even five years ago. While
considering such belated request, it should,
however, be kept in view that the concept
of compassionate appointment 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
case would call for a great deal of
circumspection. The decision to take
appointment on compassionate grounds in
such cases may, therefore, be taken only at
the Board level."

6. It is noteworthy that the same
Scheme was subject matter of consideration
by a Co-ordinate Bench in Special Appeal
No. 270 of 2023, Chairman, Baroda U.P.
Bank (Erstwhile Baroda U.P. Gramin
Bank), Gorakhpur and Others vs.
Jitendra and Others. In the said decision
also, the same view has been taken. It has
been held that a conjoint reading of Clauses
8.1 and 8.2 of the Scheme leads to the
conclusion that even if the employee had
died "five years ago", discretion has been
given to the Bank to consider such
applicants for compassionate appointment.
It has also been held that Clause 8.2 of the
Scheme was incorporated with an intention
to give it a retrospective effect. Para 19 of
the said judgment wherefrom the reasoning
behind the view taken is discernable, is
quoted below: -

(19) Considering the aforesaid facts
and circumstances of the case coupled with
the fact that it is not a case where
retrospective/prospective application of the
revised Model Scheme 2019 is in issue and
also considering Clause 8.1 and Clause 8.2
of
the
revised
Model
Scheme
of
compassionate appointment, as being a
beneficial subordinate legislation, this
Court is of the view that since Scheme,
2019 as applicable to the appellants/Bank,
itself
specifically
provides
for
478 INDIAN LAW REPORTS ALLAHABAD SERIES
encompassing
all
those
cases
for
consideration,
wherein
the
deceased
employee would had died five years ago,
which appears to be incorporated with an
intention to give it a retrospective effect,
therefore, the learned Single Judge has
rightly came to the conclusion that the
factum of the deceased employee (father of
the respondent no.1) having died on
12.08.2014 obviously falls within the
purview of Clause-8 of the revised Model
Scheme, 2019 and as such the case of the
respondent no.1/writ petitioner deserved to
be
considered
for
compassionate
appointment.

7. Learned counsel for the appellantBanks vehemently contended that the
impugned judgment of learned Single
Judge as well as the judgment of Coordinate Bench in Special Appeal No. 270
of 2023 which also places reliance on the
impugned judgment, do not take into
consideration
the
judgments
of
the
Supreme Court wherein it has been held
that the crucial date for determining right to
compassionate appointment is the date of
death of the employee and if on that date,
there was no such scheme, he could not be
given benefit of a subsequent scheme,
unless the Scheme itself makes provision
therefor. In support of the submission,
reliance is placed on the judgments of the
Supreme Court in Canara Bank vs. M.
Mahesh Kumar1; State Bank of India
and Others vs. Jaspal Kaur2; Indian
Bank and Others vs. Promila and
Another3; N. C. Santosh vs. State of
Karnataka and Others4 State of Madhya
Pradesh and others vs. Ashish Awasthi5.

8. On the other hand, counsel for the
respondents relied on (I) State Bank of
India vs. Raj Kumar6, (ii) MGB Gramin
Bank vs. Chakrawarti Singh7

9. The anchor sheet of the case of the
appellants is the judgment of Supreme
Court in
Secretary
to
Government
Department of Education (Primary) and
Others vs. Bheemesh alias Bheemappa8.
In the said judgment, the Supreme Court
has in great detail noted an apparent
conflict between two lines of decisions, one
taking the view favouring the appellantBanks and another supporting the case of
the respondents. The Supreme Court also
noted the fact that in State Bank of India
and others vs. Sheo Shankar Tewari9, a
Two Member Bench of the Supreme Court
referred the matter to a Larger Bench.
However, the reference has not been
answered so far. It has also been noticed
that since the reference was made, the
Supreme Court had decided four more
cases dealing with the same issue. These
cases are (i) Indian Bank vs. Promila; (ii)
N.C. Santosh vs. State of Karnataka; (iii)
State of Madhya Pradesh vs. Amit
Shrivas; and (iv) State of Madhya
Pradesh vs. Ashish Awasthi.

10. It has also been noted that out of
these four decisions, the judgment in N.C.
Santosh (supra) was by a Three Member
Bench and it took note of the reference
pending before the Larger Bench. The
judgment thereafter makes
a
critical
analysis of the two lines of judgments and
takes note of the fundamental difference
between the two views. It has been held
that where the benefit under the existing
Scheme was taken away or substituted with
a lesser benefit, judicial opinion was in
favour of applying the new Scheme, but in
cases where the benefits under an existing
Scheme were enlarged by a modified
Scheme after the death of the employee, the
Scheme applicable on the date of death of
the
employee
was
applied. This
is
fundamentally
due
to
the
fact
that
11 All. Authorized officer, Prathama U.P. Bank, Moradabad Vs. Smt. Manjeet Kaur
479
compassionate appointment was always
considered to be an exception to the normal
method of recruitment and looked down
upon with lesser compassion for the
individual and greater concern for the rule
of law. Paragraph nos. 17 and 18 from the
said judgment which throws light on the
aforesaid
fundamental
difference
in
interpreting the applicability of the Scheme
are extracted below: -

17. Keeping the above in mind, if we
critically analyse the way in which this
Court has proceeded to interpret the
applicability of a new or modified Scheme
that comes into force after the death of the
employee, we may notice an interesting
feature. In cases where the benefit under
the existing Scheme was taken away or
substituted with a lesser benefit, this Court
directed the application of the new Scheme.
But in cases where the benefits under an
existing Scheme were enlarged by a
modified Scheme after the death of the
employee, this Court applied only the
Scheme that was in force on the date of
death
of
the
employee.
This
is
fundamentally
due
to
the
fact
that
compassionate appointment was always
considered to be an exception to the normal
method of recruitment and perhaps looked
down upon with lesser compassion for the
individual and greater concern for the rule
of law.

18. If compassionate appointment is
one of the conditions of service and is
made automatic upon the death of an
employee in harness without any kind of
scrutiny whatsoever, the same would be
treated as a vested right in law. But it is not
so. Appointment on compassionate grounds
is not automatic, but subject to strict
scrutiny of various parameters including
the financial position of the family, the
economic dependence of the family upon
the deceased employee and the avocation
of the other members of the family.
Therefore, no one can claim to have a
vested
right
for
appointment
on
compassionate grounds. This is why some
of the decisions which we have tabulated
above appear to have interpreted the
applicability
of
revised
Schemes
differently, leading to conflict of opinion.
Though there is a conflict as to whether the
Scheme in force on the date of death of the
employee would apply or the Scheme in
force on the date of consideration of the
application
of
appointment
on
compassionate grounds would apply, there
is certainly no conflict about the underlying
concern reflected in the above decisions.
Wherever the modified Schemes diluted the
existing benefits, this Court applied those
benefits,
but
wherever
the
modified
Scheme granted larger benefits, the old
Scheme was made applicable.

11. The judgment also notices that the
cleavage of opinion revolves around two
dates, namely the date of death of the
employee and date of consideration of the
application of the dependent. It has been
held that out of these two dates, only one,
namely the date of death alone, is a fixed
factor and does not change. It has been
observed that a rule of interpretation which
produces different results, dependent upon
what individuals do or do not do, is
inconceivable. It has been held that the
interpretation as to the applicability of a
modified Scheme should depend only upon
a determinate and fixed criteria such as the
date of death and not an indeterminate and
variable factor like date of filing of the
application or date of its consideration.

12. Reverting to the facts of the
instant case, indisputably, on the date of
death of the employee, there was no
480 INDIAN LAW REPORTS ALLAHABAD SERIES
Scheme in force for appointment of the
dependent
family
member
on
compassionate basis. The Scheme for
compassionate appointment came into
effect from 1.3.2019. As the Scheme
confers
right
to
be
considered
for
compassionate appointment for the first
time after it was enforced, it definitely
confers new and better rights then what
were available at the time of death of the
employee. Applying the legal principles in
Bheemesh (supra), the Scheme perhaps
would not apply. However, in the impugned
order as well as the judgment of the Coordinate Bench, as already noted, the view
taken is that by virtue of Clause 8.1 and
8.2, the Scheme would have retrospective
operation.

13. Compassionate appointment is
never a part of service condition of any
employee or a vested right. It cannot be
given in absence of rules or regulations
issued in this behalf. The right comes into
existence for the first time upon death of
the employee in harness. If there is no
scheme for compassionate appointment
applicable on date of death, then no such
right accrues except in cases where a future
scheme unequivocally declares that it
would apply retrospectively.

14. One of the factors which weighed
with the Co-ordinate Bench in Jitendra
(supra) is that the Scheme was a piece of
beneficial
subordinate
legislation.
Therefore, a wider interpretation relating to
its applicability was given. However, the
consistent
judicial
opinion
is
that
appointment on compassionate basis being
an exception should be strictly construed.
(See Bhawani Prasad Sarkar vs. Union
of India, (2022) 4 SCC 209; Umesh
Kumar Nagpal vs. State of Haryana
(1994) 4 SCC 138).

15. Clause 8 relates to time limit for
considering the applications. Thus, it
provides for limitation in which a claim
covered by the Scheme is to be made. It is
five years from the date of death, but in
exceptional circumstances, a claim beyond
period of five years could also be
considered after thorough scrutiny and only
at the level of Board. The question of
reckoning the limitation would arise only
when the case of any of the applicant is
covered under the substantive part of the
Scheme. Had there been any intention to
make the Scheme applicable even to cases
where death had taken place in preceding
five years, it could have been stated
expressly as in Raj Kumar (supra) and
MGB Gramin Bank (supra). This very
Scheme was considered in Bechan Giri vs.
Union of India by a learned Single Judge
and it is held that Clause 8.1 and 8.2 of the
Scheme "do not envisage cognizance of
cases of dependants, where death of an
employee in harness has taken place before
the Scheme was enforced in the Bank. The
employment of the expression in Clause 8.1
"normally be considered upto five years
from the date of death" refers to the period
of five years of death on a date when the
Scheme was already in force in the Bank;
not five years or a little short of that time
antedating the introduction of the Scheme."
However, it seems that the judgement of
this Court in Bechan Giri (supra) was not
cited before the Division Bench in
Jitendra (supra).

16. With due deference, we are unable
to agree to the view taken in Jitendra
(supra). As the said judgment is by Coordinate Bench of equal strength, judicial
propriety demand that the question be
settled by a Larger Bench. Accordingly, we
refer the following question for being
answered
by
a
Larger
Bench:
-
11 All. Mohit Kumar Dwivedi Vs. Ram Janak Maurya & Ors.
481

"Whether the interpretation given to
Clause 8 of the Scheme dated 10.5.2019 in
Chairman, Baroda U.P. Bank (Erstwhile
Baroda U.P. Gramin Bank), Gorakhpur
and Others vs. Jitendra and Others and
analogous Schemes, is sustainable in law,
in view of judgment of Supreme Court in
Secretary to Government Department of
Education (Primary) and Others vs.
Bheemesh alias Bheemappa and other
judgments?"

17. Let the papers of the instant batch
of appeals be placed before Hon'ble the
Chief Justice for constituting a Larger
Bench.
----------
(2023) 11 ILRA 481
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.10.2023

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Special Appeal No. 613 of 2018
along with
other connected cases

Mohit Kumar Dwivedi ...Appellant
Versus
Ram Janak Maurya & Ors. ...Respondents

Counsel for the Appellant:
Apporva Tewari, Anand Kumar Yadav, Paritosh
Shukla, Sudeep Kumar, Sukh Deo Singh

Counsel for the Respondents:
C.S.C., Amrendra Nath Tripathi, Durga
Prasad
Shukla,
Gaurav
Mehrotra,
Himanshu Raghave, Ishita Yadu, Nand
Kishore
Patel,
Onkar
Singh,
Pradeep
Kumar Yadav, Sachin Kumar Srivastava,
Sharad Nandan Ojha,
Sudeep Kumar,
Sudhir
Mishra,
Ujjwal
Tripathi,
Utsav
Mishra,
Vindhyawashin
Kumar,
Vivek
Mishra
Service
Law-U.P.
Basic
Education
(Teachers) Service Rules, 1981-Rule 14
---Special Appeals filed against the judgment
whereby the learned Single Judge has set aside
the entire selection on the post of Assistant
Teachers against 12,460 vacancies initiated in
pursuance of the advertisement issued on
21.12.2016
with
certain
directions---
Advertisement issued for appointment of 12,460
Assistant Teachers in the Junior Schools. 5,990
candidates are already working on the said
posts, 6,470 posts are still left to be filled---
Merit should always be promoted for ensuring
quality education as proposed by the RTE Act in
its preamble itself and the Courts have always
promoted this cause, denial of appointments to
meritorious candidates is prejudicial to the
interest of meritorious candidates, who are
future of our Nation---Thus, this court does not
find any error in the preparation of merit list at
District Level of the Assistant Teachers on the
basis of candidates of "0" vacancy district to
participate in the counseling's for any district by
marking their preference, which needless to
say is in conformity to section 23 of the RTE
Act. The said provisions is also not in breach
of the touchstone as devised by the Apex
Court for infringement of the provision of
Articles
14,
15,
16
and
21-A of
the
Constitution of India---Impugned order set
aside---Directions issued to the authorities
concerned to take a decision to fill-up all the
posts inclusive of residual 6,470 by preparing
a common merit list of all the eligible
Assistant Teachers as per NCTE Notifications
read
with
Notification/Circular
dated
26.12.2016 in the respective districts, within a
period of three months from the date of
production of a certified copy of this order.(E15)

List of the cases referred-:

1. Girjesh Srivastava Vs St. of M.P. [(2010) SCC
(10) 707]

2.
D.
N.
Jeevaraj
Vs
Chief
Secretary,
Government of Karnataka & ors.[(2016) 2 SCC
653]

3. St. of Har. & anr. Vs Chanan Mal &
ors.[(1977) 1 SCC 340]