# Bechan Giri v. U.O.I. & Ors

- **Citation:** (2023) 8 ILRA 1433
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-17
- **Case number:** Writ-A No. 9704 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bechan-giri-v-u-o-i-ors-50545
- **Pages:** 17

## Headnote

A.S.G.I., Sri Salilendu Kumar Upadhyay, Sri
Gyan Prakash Srivastava, Sri Ashok Khare
(Sr. Adv.)

Compassionate appointment, Dying in harness,
Baroda
U.P.
Bank,
Scheme
enforcement,
Retrospective operation, Prospective application,
Ministry of Finance Scheme, Clause 8.1 and 8.2,
Financial distress, Economic dependence, Public
sector bank, Circular dated 28.03.2019

Held: The writ petition challenging the order
dated 20.01.2020, declining compassionate
appointment for the petitioner on the ground
that his father's death in harness occurred
before
the
compassionate
appointment
scheme's enforcement on 15.03.2019, and the
circular
dated
28.03.2019
clarifying
the
scheme's prospective operation, is dismissed.
The petitioner's father, an office assistant at
Baroda U.P. Bank, died on 08.10.2018, before
1434 INDIAN LAW REPORTS ALLAHABAD SERIES
the scheme's introduction. The scheme, notified
by the Ministry of Finance w.e.f. 05.08.2014 and
adopted by the Bank w.e.f. 15.03.2019, under
Clause 8.1, allows consideration of applications
within five years from the date of death, but
does not apply retrospectively to deaths
occurring before the scheme's enforcement in
the
Bank.
The
right
to
compassionate
appointment is not inherent but arises from the
scheme in force at the time of the employee's
death. The circular dated 28.03.2019, clarifying
that the scheme does not cover deaths prior to
its enforcement, is upheld as consistent with the
scheme's intent. No interference with the
impugned order is warranted.

References:

## Text

_Characters 0–39,958 of 56,932. This is a partial read: ask again with offset=39958 for what follows._

8 All. Bechan Giri Vs. U.O.I. & Ors.
1433
word 'technical' has not been used in the
Government Order. If one defines the word
'technical', it may have many sense relating
to the discipline and field concerned as in
the case if laboratory of Chemistry, a
Gasman is a person, who carries and
maintain the gasses and, therefore, he
should have a knowledge to manage it and
this can be only when he has the technical
skill. Similarly, Gardner is a skilled person
in the field of plant and saplings to
maintain a botanical garden and again a
Mechanic-cum-Electrician is required to be
skilled in dealing with machines and
electric equipment. Therefore, Animal
Catcher in the laboratory of Zoology will
also be required to be skilled person
technically sound in the field to catch
animals safely for the purposes of research.

18. In view of the above, therefore, I
hold that the post of Animal Catcher meant
for a laboratory of Zoology is a technical
post and cannot be taken to be a general
Class-IV post.

19. Under the circumstances, the
Government Order that provides for
outsourcing dated 6th January, 2011, the
post of Animal Catcher in the laboratory of
Zoology would fall in the exception clause
of technical Class-IV post. Thus, the
institution is entitled to make regular
appointment against sanctioned post of
Animal Catcher in the laboratory of
Zoology of the institution.

20.

Accordingly,
writ
petition
succeeds and is allowed. The order dated
4th March, 2023, passed by the Joint
Director of Education, Prayagraj, issued on
behalf of Director of Higher Education,
Uttar
Pradesh,
Prayagraj,
is
hereby
quashed. The respondents are directed to
grant
permission
to
the
petitionerInstitution to fill up the post of Animal
Catcher
by
making
regular
appointment/recruitment
as
per
the
procedure
prescribed
for.
Necessary
permission shall be granted within 15 days
of presentation of a certified copy of this
order.

21. There will be no order as to costs.
----------
(2023) 8 ILRA 1433
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.07.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 9704 of 2023

Bechan Giri ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Seemant Singh

Counsel for the Respondents:
A.S.G.I., Sri Salilendu Kumar Upadhyay, Sri
Gyan Prakash Srivastava, Sri Ashok Khare
(Sr. Adv.)

Compassionate appointment, Dying in harness,
Baroda
U.P.
Bank,
Scheme
enforcement,
Retrospective operation, Prospective application,
Ministry of Finance Scheme, Clause 8.1 and 8.2,
Financial distress, Economic dependence, Public
sector bank, Circular dated 28.03.2019

Held: The writ petition challenging the order
dated 20.01.2020, declining compassionate
appointment for the petitioner on the ground
that his father's death in harness occurred
before
the
compassionate
appointment
scheme's enforcement on 15.03.2019, and the
circular
dated
28.03.2019
clarifying
the
scheme's prospective operation, is dismissed.
The petitioner's father, an office assistant at
Baroda U.P. Bank, died on 08.10.2018, before
1434 INDIAN LAW REPORTS ALLAHABAD SERIES
the scheme's introduction. The scheme, notified
by the Ministry of Finance w.e.f. 05.08.2014 and
adopted by the Bank w.e.f. 15.03.2019, under
Clause 8.1, allows consideration of applications
within five years from the date of death, but
does not apply retrospectively to deaths
occurring before the scheme's enforcement in
the
Bank.
The
right
to
compassionate
appointment is not inherent but arises from the
scheme in force at the time of the employee's
death. The circular dated 28.03.2019, clarifying
that the scheme does not cover deaths prior to
its enforcement, is upheld as consistent with the
scheme's intent. No interference with the
impugned order is warranted.

References:

1. Chief Manager (HR) Bangiya Gramin Vikash
Bank Vs U.O.I.(2022 SCC OnLine Cal 759);

2. Central Bank of India Vs Urmila Devi (2017
LabIC 3646);

3. Gigna Devi Vs U.O.I.(2022 SCC OnLine Raj
2929);

4. Smt. Manjeet Kaur Vs St. of U.P. (Writ-A No.
2615 of 2023);

6. St. of M.P. Vs Ashish Awasthi ((2022) 2 SCC
157);

7. Secretary to Govt. Department of Education
Vs Bheemesh (AIR 2022 SC 402);

8. Indian Bank Vs Promila ((2020) 2 SCC 729);

9. St. of M.P. Vs Amit Shrivas ((2020) 10 SCC
496);

10. Canara Bank Vs M. Mahesh Kumar ((2015) 7
SCC 412);

11. Mukesh Kumar Vs U.O.I.(2019 (12) ADJ
429);

12. Moti Lal Vs U.O.I.(Writ-A No. 6628 of 2020);

13. S.B.I.Vs Raj Kumar; MGB Gramin Bank;

14. S.B.I.Vs Sheo Shankar Tewari.
(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition is directed
against
an
order
dated
20.01.2020,
declining an application by the petitioner's
mother seeking compassionate appointment
for him on ground of his father's death in
harness.

2. The facts giving rise to this petition
are
that
the
petitioner's
father
was
employed as an office assistant in Baroda
U.P. Bank, earlier known as the Purvanchal
Bank. The said bank shall hereinafter be
called 'the Bank'. The petitioner's father
was last posted at Branch Kadamtar,
District Ballia. He died in harness on 8th of
October, 2018. The petitioner's mother
moved
an
application
seeking
compassionate appointment for him, the
petitioner being the eldest son of the
deceased. The application was made to the
General
Manager
of
the
Bank
on
18.04.2019 accompanied by the deceased
employee's
death
certificate
dated
02.11.2018.
The
Assistant
General
Manager of the Bank by the order
impugned dated 20.01.2020 communicated
the Bank's decision declining to consider
the petitioner's case on ground that the
dying in harness scheme became effective
in the Bank w.e.f. 15th March, 2019,
whereas the petitioner's father had expired
prior to 15th March, 2019.

3. The petitioner has also challenged a
circular dated 28.03.2019 issued by the
Head Office of the Bank, explaining the
operation of the scheme for compassionate
appointment in terms that the provision in
the scheme that claims, 'in case of death
occurring
five
years
earlier
can
be
considered', does not mean that the scheme
would have retrospective operation. In
other words, the circular issued by the
8 All. Bechan Giri Vs. U.O.I. & Ors.
1435
Head Office impugned, clarifies that in
cases of death of employees in harness that
have happened before the scheme was
enforced, the right to a consideration for
compassionate appointment is not there.

4. Heard Mr. Seemant Singh, learned
Counsel for the petitioner, Mr. Ashok
Khare, learned Senior Advocate assisted by
Mr. Gyan Prakash Srivastava, learned
Advocate
appearing
on
behalf
of
respondent Nos.4 and 5 and Mr. Salilendu
Kumar
Upadhyay,
learned
Counsel
appearing on behalf of respondent Nos.1
and 2.

5. Mr. Seemant Singh, learned
Counsel for the petitioner submits that the
circular dated 28.03.2019 issued by the
Head Office of the Bank interpreting the
dying in harness scheme to be prospective
in operation is flawed and defeats the
mandate of the scheme for compassionate
appointment originally framed and adopted
by
the
Bank.
The
scheme
for
compassionate
appointment
in
Public
Sector Banks, as it is called, was notified
by
the
Ministry
of
Finance
w.e.f.
05.08.2014. Clause 8 of the Scheme reads:

"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 requests, 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 cases would call for a great deal of
circumspection. The decision to make
appointment on compassionate grounds in
such cases may, therefore, be taken only at
the Board level."

6. Mr. Seemant Singh, learned
Counsel for the petitioner submits that
Clause 8.1 of the Scheme clearly lays down
that
the
claim
to
compassionate
appointment by a dependent of a deceased
employee can normally be considered upto
five years from the date of death.
According to him, the scheme is beneficial
in nature and must be construed to apply
retrospectively to those cases also where
death occurred before the scheme was
enforced in the Bank but within five years
of the death of the employee, entitling his
dependent under it.

7. In support of his contention, Mr.
Seemant Singh has placed reliance upon a
Bench decision of the Calcutta High Court
in Chief Manager (HR) Bangiya Gramin
Vikash Bank and others v. Union of
India and another, 2022 SCC OnLine
Cal 759, which is strikingly similar on
facts and has interpreted the provisions of
the same scheme as the one here notified
by the Ministry of Finance and adopted by
the Bank in that case, as is the case here. In
the said decision, it has been held that
notwithstanding the death of the employee
before the date of enforcement of the
scheme in the bank, his dependent is
entitled to a consideration of his case for
1436 INDIAN LAW REPORTS ALLAHABAD SERIES
compassionate appointment, if the claim is
laid within five years of the date of death of
the employee.

8. Learned Counsel for the petitioner
has further placed reliance on a decision of
the Patna High Court in Central Bank of
India v. Urmila Devi, 2017 LabIC 3646,
which also holds that the scheme here
applies to cases of dependents of those
employees, who died before the scheme
came into force, but within five years of
death the claim has been made.

9. Another decision, Mr. Seemant
Singh has called in aid, is that of the
Rajasthan High Court in Gigna Devi and
another v. Union of India through
Secretary Ministry of Finance and
others, 2022 SCC OnLine Raj 2929. In
this case also, it was held that the
dependent of an employee, who had died
prior to adoption of the scheme by the
bank, would be entitled to compassionate
appointment as he had applied within five
years of the employee's death in harness.
The scheme was held to have retrospective
operation. Mr. Seemant Singh has also
placed
reliance
upon
an
unreported
decision of this Court in Smt. Manjeet
Kaur v. State of U.P. and another, WRIT
- A No.2615 of 2023, decided on
05.04.2023. The attention of the Court has
been invited to the following remarks of
Vivek Chaudhary, J. in Smt. Manjeet
Kaur (supra):

"A bare perusal of the said clause
shows that application can be moved within
a period of five years from the date of
death. There is no dispute that the death has
taken place before coming into force the
said scheme. Clause 8.2 specifically says
that application can be filed within five
years of death. Thus even when the death
has taken place earlier such cases shall also
be considered. There is no bar in this regard
in the scheme.

In the present case, the death has
taken place hardly a year before the scheme
came into force, hence there is no dispute
that the application is made within a period
of five years.

In view thereof, the impugned
order dated 07.12.2021, cannot stand and is
set aside."

10. Mr. Ashok Khare, learned Senior
Advocate appearing for the Bank in the
company
of
Mr.
Salilendu
Kumar
Upadhyay,
learned
Counsel
for
the
Government of India, has submitted that
the interpretation placed on Clauses 8.1 and
8.2 of the Scheme, on behalf of the
petitioner, is absolutely flawed. Mr. Khare
submits that the right to be considered for
compassionate appointment is not an
inherent right, but flows from the Scheme.
The learned Senior Advocate submits that
there would be no cause of action accruing
to the dependent of an employee dying in
harness if on the date of his death, there is
no Scheme for compassionate appointment
in force. It is urged that the five year period
of limitation for the dependent of an
employee dying in harness referred to in
Clauses 8.1 and 8.2 postulates an existing
scheme on the date of death. It has no
application to a situation where on the date
of death of the employee, the Scheme is not
in force at all in the Bank establishment.
Mr. Khare says that if after enforcement of
the Scheme in the Bank, an employee dies
in harness, the five year period of limitation
giving two different kinds of rights under
Clauses 8.1 and 8.2 would arise, but not
where on the date of death the Scheme was
not at all in force in the Bank.
8 All. Bechan Giri Vs. U.O.I. & Ors.
1437

11. In support of his contention, Mr.
Khare has placed reliance upon a very
recent decision of the Supreme Court in
State of Madhya Pradhesh and others v.
Ashish Awasthi, (2022) 2 SCC 157. Mr.
Khare has further placed reliance upon a
decision of this Court in Mukesh Kumar
v. Union of India and others, 2019 (12)
ADJ 429 and an unreported decision
following the principle in Mukesh Kumar
(supra) in Moti Lal v. Union of India and
others, WRIT - A No. 6628 of 2020,
decided on 02.09.2021.

12. The moot question involved in
this case is: Whether the right of a
dependent of an employee dying in harness
is to be governed by the Scheme or Rules in
force in the employer's establishment on the
date of the employee's death or on the date
that the dependant's application is moved
for consideration?

13. The right to be considered for
compassion appointment for one is not a
right in the sense generally understood in
the law. It is a kind of a concession
extended to the dependents of a deceased
employee, who dies in harness leaving his
family behind in such financial distress that
may not be overcome by a one time
payment of terminal benefits or a modest
family pension. It is a bi-product of the
State's welfare function provided in State
establishments, where the State is the
employer or an establishment that is in
some way a State instrumentality or a face
of the State. The purpose is to save the
deceased employee's family from plunging
into an economic crisis by providing them a
kind of stable support that may enable the
surviving family to tide over the crisis that
the sudden loss of the breadwinner brings.
Therefore, by now, it is more or less settled
that a claim for compassionate appointment
is not to be granted by a blanket formula.
Many factors relating to the deceased's
family, that is left behind, have to be
evaluated
before
compassionate
appointment is granted. It is often and
rightly
said
that
compassionate
appointment is not a mode of recruitment to
public service. Apart from the funds that
the family members of the deceased receive
upon his demise as terminal benefits, the
ages of the dependent children, their
education and future needs, all may require
evaluation
before
a
claim
for
compassionate appointment is accepted
under the scheme or the rules applicable. It
is in this sense that it is not a kind of vested
right that the dependent of a deceased
employee enjoys in the event of the
employee dying in harness. The other very
relevant factor to answer the question under
consideration is that the right to a
consideration
for
compassionate
appointment is not an inherent right. Unless
there are statutory rules or a scheme in
force in the employer's establishment
providing for compassionate appointment,
no dependent of a deceased employee, who
passes away in harness, can stake his claim.

14. It is in the background of the
aforesaid principles, and, more than that,
the nature of compassionate appointment
itself that the question involved here may
be answered.

15. The question indeed has led to
much division of judicial opinion in the
context of the scheme here, in particular. It
is necessary to notice those decisions
before any fruitful conclusion can be
reached. In Bangiya Gramin Vikash
Bank (supra), which is a Bench decision of
the Calcutta High Court, the facts were that
the writ petitioner's father died in harness
on 28th June, 2017. He was a messenger, a
1438 INDIAN LAW REPORTS ALLAHABAD SERIES
Group-D employee. The petitioner's claim
for
compassionate
appointment
was
rejected by a communication dated 16th
November, 2019 on ground that his father
had died before the scheme came into force
in the bank w.e.f. 6th March, 2019. The
writ petitioner applied for consideration on
8th April, 2019, i.e., after the scheme had
been enforced w.e.f. 6th March, 2019. But,
his claim did not find favour with the bank,
as already said. The learned Single Judge
allowed the writ petition and the bank
appealed to the Division Bench. Speaking
for the Division Bench, Subrata Talukdar,
J. held:

"12. Having heard the parties and
considering the materials placed, this Court
finds as follows:

A) That the writ petitioner
applied on the 8th of April 2019 by which
time the Scheme had come into force on
the 6th of March 2019. With reference to
CA 8564 of 2015 (supra), which is an
authority relied upon by the appellant, it is
noticed that reference therein has been
made to CA 2798 of 2010, reported in
(2020) 2 SCC 729, wherein Paragraph 23,
as pointed out by Learned Counsel for the
appellant, reads as follows:

"23. We had the occasion of
examining
the
issue
of
compassion
appointment in a recent judgment in Indian
Bank v. Promila 4 We may usefully refer to
paras 3, 4, & 5 as under:"3. There has been
some confusion as to the scheme applicable
and, thus, this Court directed the scheme
prevalent, on the date of the death, to be
placed before this Court for consideration, as
the High Court appears to have dealt with a
scheme which was of a subsequent date. The
need for this also arose on account of the
legal position being settled by the judgment
of this Court in Canara Bank v. M. Mahesh
Kumar, (2015) 7 SCC 412, qua what would
be the cut-off date for application of such
scheme. 4. It is trite to emphasise, based on
numerous judicial pronouncements of this
Court, that compassionate appointment is not
an alternative to the normal course of
appointment, and that 4 (2020) 2 SCC 729 13
there
is
no
inherent
right
to
seek
compassionate appointment. The objective is
only to provide solace and succour to the
family in difficult times and, thus, the
relevancy is at that stage of time when the
employee passes away. 5. An aspect
examined by this judgment is as to whether a
claim for compassionate employment under a
scheme of a particular year could be decided
based on a subsequent scheme that came into
force much after the claim. The answer to this
has been emphatically in the negative. It has
also been observed that the grant of family
pension and payment of terminal benefits
cannot be treated as a substitute for
providing
employment
assistance.
The
crucial aspect is to turn to the scheme itself to
consider as to what are the provisions made
in the scheme for such compassionate
appointment."

B) From a reading of the
authorities as cited above, it is clear that
normally
a
claim
to
compassionate
appointment is to be decided on the basis of
the Scheme applicable and, not on a
subsequent Scheme. However, the Hon'ble
Apex Court was pleased to clarify that it
would be crucial to examine the Scheme
itself to find out whether the Scheme itself
has made provisions for compassionate
appointment in cases where the employee
concerned had died prior to the Scheme
coming into force.

C) This Court must turn for an
answer to B) above to the impugned Order
8 All. Bechan Giri Vs. U.O.I. & Ors.
1439
of the Hon'ble Single Bench. It is noticed
that the Hon'ble Single Bench has taken
pains to record the terms of the said
Scheme in the following manner:

"The petitioner's father died on
28th June, 2017 while he was engaged as
"Messenger" in the Group-"D" Category
with the Bangiya Gramin Vikash Bank. The
petitioner applied on 8th April, 2019 for
being
considered
for
compassionate
employment in place and stead of his
deceased father.

The Board of Directors of the
Bank implemented a model scheme for
compassionate employment on the line of
all other Regional Rural Banks under the
"National Bank for Agricultural and Rural
Development" (NABARD) on 9th January,
2019. A communication to that effect was
issued to all Branches, Departments and
Head Office on 8th March, 2019.

The petitioner's application was
rejected by a communication dated 16th
November, 2019, inter alia, on the ground
that the petitioner's father had died before
the
Scheme
for
Compassionate
Employment Regulations of 2019 came into
force. In lieu thereof, however, the Bank
offered to the petitioner ex-gratia. The
propriety and legality of the rejection order
dated 16th November, 2019 has been
questioned before this Court.

Ms. Rao, learned Counsel for
the Bank has argued that since the
Scheme came into force on 6th March,
2019 and the petitioner's father died in
the year 2017, his application is outside
the scheme. The date of the petitioner's
application
for
compassionate
employment
and
the
consideration
thereof are irrelevant.

The other argument advanced by
the Counsel for the Bank that the
petitioner's application if allowed would
throw open flood gates of claims on
account of all those persons, who died from
the year 2015, cannot be sustained since
such other persons are not before this
court.

Ms. Rao has relied upon an
unreported decision of the Single Bench of
the Allahabad High Court in the case of
Sarvesh Pandey v. Union of India dated
25th September, 2019 being Case No.
WRIT-A No. 14578 of 2019.

The
arguments
advanced
by
Learned Counsel Ms. Rao for the Bank
cannot be accepted.

This Court finds that the Scheme
for
Compassionate
Employment
was
adopted sometime on 9th January, 2019
and was sent for implementation to all
Branches by a communication dated 6th
March, 2019.

"Coverage" in the Scheme is
defined in Clause (1). "1.1. To a dependent
family member of permanent employee of
Bangiya Gramin Vikash Bank who - 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 the 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/retirement on
1440 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

The time limit for consideration
of application is set out in Clause 8 under
8(1). Clause 8(2) of the said Scheme may
also, however, be noted. "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 requests, it
should, however, be kept in view that the
concept of compassionate appointment is
largely related to the need for immediate
assistance to 4 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. The decision to make
appointment on compassionate grounds in
such cases may, therefore, be taken only at
the Board level."

A conjoint reading of Clause 1.2
and Clause 8.2 would indicate that the
petitioner is indeed covered under the
aforesaid Scheme for the following reasons
: (a) Clause 8(2) clearly stipulates that the
Bank could consider the request of
compassionate employment in case of death
or retirement on medical grounds even the
employee had died 'five years ago'. The
petitioner's father died in the year 2017, i.e.
within 5 years prior to the coming into
force of the Scheme. (b) The petitioner had
applied on 8th April, 2019 after the date of
implementation of the Scheme on 6th
March, 2019. As on the date of the
impugned order, i.e. 16th November, 2019,
the aforesaid Scheme for compassionate
employment was in force.

It is now well settled that the
Rules in force at the time when a prayer is
made and at the time of consideration of
such prayer, are the only ones that have to
be applied.

It is true that the compassionate
employment is an exception to the General
Rule of Employment. However, following
the principle of Generalia Specialibus Non
Derogant, if a Scheme and/or Rules
specially prescribe for such appointment,
in an organization, the said rules would
become the basis of appointment for claims
for such employment irrespective of the
General Principles of application thereof.

The facts of the Sarvesh Pandey
(supra) case are substantially different from
that of the instant case. In the said decision
the challenge was to the 5 year cutoff date
after death of the employee, to seek
compassionate employment. The mother of
the applicant had already received exgratia
and wanted compassionate appointment by
refunding the said amount to the bank. The
petitioner's father in the said case died before
years of the Scheme coming into force.

pective operation conceived of
under the said Scheme the Allahabad High
Court held that the cut-off date of 5 year
8 All. Bechan Giri Vs. U.O.I. & Ors.
1441
stipulated cannot be further stretched
beyond. Hence the claim of the petitioner
was rejected therein.

For
the
reasons
stated
hereinabove, this Court is of the view that
the impugned order dated 16th November,
2019 cannot be sustained and is hereby set
aside.

The
respondent
Bank
shall
consider
the
petitioner's
claim
for
compassionate employment and process the
same in accordance with the Scheme and
the applicable Rules within a period of two
months from the date of communication of
a copy of this order.

The instant writ petition is
allowed and disposed of. There will be no
order as to costs. Urgent photostat certified
copy of this order, if applied for, be given
to the parties upon compliance of all
formalities."

XXXX

13. In the light of the above
findings, this Court therefore holds that the
said
Scheme
for
compassionate
appointment was applicable to the claim of
the writ petitioner as on the date of the
application of the writ petitioner. This
Court further holds that the Hon'ble Single
Bench has correctly noticed that the
provisions of the said Scheme extend their
coverage in the facts of this case to the
death of the employee, i.e. the father of the
writ petitioner, which took place within a
period of five years of the implementation
of the said Scheme as stated in Clause 8.2
of the same.

14. Accordingly, the claim of the
writ petitioner falls within the zone of
consideration as laid down In Re : CA
2798 of 2010 (supra) and noticed in CA
8564 of 2015 (supra), to the effect that if
the said Scheme itself makes provisions for
retrospective application extendable to five
years from the death of the employee, the
same shall be held to be applicable."

16. In Urmila Devi (supra), which
again is a Bench decision of the Patna High
Court, the relevant facts are that on
04.10.2012, three employees of the Central
Bank had gone to the Nawada Branch of
the bank for the purpose of remitting Rs.35
lacs to the Harnaut Branch. They were
proceeding
by
an
Ambassador
Car
provided by the bank. They were on duty.
The car was waylaid on the National
Highway and a robbery took place. In their
attempt to force the car to stop, the robbers
made it collide with a truck, leading to
death of the three employees on board car.
Thus, the robbery and the violence
involved led to death of the three
employees of the Central Bank, who were
on duty. The family members of each of the
three
employees
laid
claim
for
compassionate
appointment.
It
was
recommended by the Regional Office, but
the Head Office of the Bank rejected the
claim. The disillusioned dependents of the
three
deceased
employees
instituted
separate writ petitions. The learned Single
Judge allowed the writ petitions directing
the Bank to consider the case of the writ
petitioners in accordance with the Scheme
of 2007, as well as the Scheme of 2014.
The Bank carried three appeals to the
Bench on the ground that the dependents of
the employees were not entitled to
compassionate appointment. It was urged
that the dependents were entitled to an ex
gratia payment under the Scheme of 2007,
but not compassionate appointment under
the Scheme of 2014. The Scheme of 2014
1442 INDIAN LAW REPORTS ALLAHABAD SERIES
is the same as the one involved in the
present case. The Scheme of 2007 did not
provide for compassionate appointment
generally, but payment of ex gratia
payment
in
lieu
of
compassionate
appointment. However, by an amendment
made to it on 19th July, 2007, two Clauses
were added providing for compassionate
appointment
in
the
following
contingencies:

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

(b) dies within five years of his
first appointment or before he reaches the
age of 30 years, whichever is later, leaving
a dependent spouse and/or minor children."

17. Subsequently, the Scheme of 2014
came
into
force
w.e.f.
05.08.2014
introducing
a
general
right
of
compassionate appointment. It carried
Clauses 8.1 and 8.2, that are under
consideration here. In the appeal, it was the
Bank's case that the death of the employees
was on account of a road accident and not a
robbery while performing duty or as a
result of violence, terrorism or dacoity. The
Division Bench accepted the Bank's case
on this score to be correct, because the only
evidence of the incident was an FIR, which
showed that the car on official duty
collided with a truck leading to the
employees' death. There was no material on
record to show that death was the result of
violence, terrorism, robbery or dacoity.
Urmila Devi's case was nevertheless
accepted by their Lordships on ground that
her husband died within five years of his
first appointment and before he reached the
age of 30 years attracting the other
contingency
postulated
under
the
amendment to the Scheme of 2007.

18. Since, however, there were three
different employees, whose dependents
have claimed, and, one of them alone fell
under Clause (b) of the amended Scheme of
2007, their Lordships examined the case of
the petitioners, atleast the two others, under
Clause 8.1 of the Scheme of 2007. The writ
petitioners were held entitled under the
Scheme of 2014, holding that Clause 8.1
would apply to cases "where death
occurred within five years from the date of
coming into force of the Scheme and not
after
05.08.2014."
Speaking
for
the
Division Bench in Urmila Devi, it was
held by Rajendra Menon, C.J.:

"7. As far as all three employees
were concerned, even if their cases do not
fall under Clause (a) of the Scheme, 2007,
we find that their cases would fall under
Clause 8.1. of the Scheme of 2014, as the
incident
in
question
took
place
on
04.10.2012 and their cases of employment
under the Scheme has to be considered up
to five years from the date of death or
retirement on medical ground etc. It is the
contention of the Bank before us and Sri
Ajay
Kumar
Sinha,
learned
counsel
appearing for the Bank, vehemently argued
that the Scheme in question of the year
2014 has come into force with effect from
05.08.2014 and, therefore, only if the
accident occurs after 05.08.2014, then their
cases can be considered five years from the
date of coming into force of the Scheme. If
such a contention is accepted, then clause
8.1. would be redundant. It would not cover
any case where death occurred prior to
05.08.2014. It would only apply in cases
where death occurs five years after
05.08.2014. This could never be the
intention of the formulator of the Scheme.
The clause 8.1. of the Scheme of 2014, in
our view, was introduced for granting
benefit of compassionate appointment in
8 All. Bechan Giri Vs. U.O.I. & Ors.
1443
such cases where death occurred within
five years from the date of coming into
force of the Scheme of 2014 and not after
05.08.2014. The learned Writ Court has
also considered this aspect of the matter
and has directed for considering the case of
the employees under these clauses and we
see no error in the same warranting
reconsideration. In our considered view,
the purpose of incorporating clause 8.1. in
the Scheme of 2014 would only be for
giving
benefit
of
compassionate
appointment in cases where death occurs
five years prior to coming into force of the
Scheme and if the contention advanced by
the Bank is accepted, we are of the
considered view that Clause 8.1. of the
Scheme of 2014 need not be incorporated
in
the
manner
it
has
been
done.
Accordingly, finding no merit, we dismiss
the appeals."

19. Adopting the same line of
reasoning as the one that prevailed with the
Calcutta High Court and the Patna High
Court, it was held by a learned Single
Judge of the Rajasthan High Court in
Gigna Devi (supra) with reference to
Clauses 8.1 and 8.2 of the Scheme on the
issue of its retrospective application:

"8. A bare perusal of the above
clause makes it clear that the same
provides for consideration of the eligible
dependents for compassionate appointment
normally upto five years from the date of
death but can consider the cases even
where death took place more than five
years ago. The present one is a specific
case
where
the
application
for
compassionate appointment was moved in
the year 2014 and the same was not even
considered for a long period of three years.
It is only in the year 2017 that the bank
took a stand that there is no scheme for
compassionate appointment which governs
the respondent bank. Soon after the said
communication, the present writ petition
has
been
preferred
and
meanwhile,
admittedly the policy of 2019 has been
adopted by the respondent bank which
specifically provides for consideration of
cases wherein the death of an employee
occurred five years ago or even prior to
that. So far as the case of Ashish Awasthi
(supra) relied upon by learned counsel for
the respondents is concerned, it was a case
wherein there was no dispute regarding the
existence of any scheme for compassionate
appointment. The dispute therein was as to
the date of applicability of the policy and
as to which policy would apply. The
present case can be differentiated from the
said matter as in the present matter there is
no dispute regarding the applicability of
the policy. Moreover, in Ashish Awasthi's
case (supra) there was no clause similar to
that of Clause 8 in the present scheme.

9. In the present matter, the scheme
applicable to the respondent bank itself
specifically provides for consideration of
cases wherein the death had occurred more
than five years ago. The same naturally has
been incorporated with an intention to give it
a retrospective effect. The death of the
employee took place in the year 2014, the
application for compassionate appointment
was filed in the same year, i.e., 2014 and the
policy/scheme was adopted by the Bank in
the year 2019. Therefore, the application for
compassionate
appointment
filed
by
petitioner No. 1 in the year 2014 definitely
falls within the purview of Clause 8 of the
Scheme as the death had occurred five years
ago from the year of adoption of the policy."

20. The question arising here fell for
consideration of the Supreme Court in
Ashish Awasthi (supra). In that case, the
1444 INDIAN LAW REPORTS ALLAHABAD SERIES
writ petitioner's father was a Chowkidar in
the office of the Assistant Engineer, Public
Health
Engineer,
District
Tikamgarh,
Madhya Pradesh. The petitioner's father
died in harness on 08.10.2015. At the time
of his demise, the deceased was serving in
the work charged establishment and paid
salary from the contingency fund. The writ
petitioner was paid a compensatory sum of
Rs.2 lakhs as per the policy in force at the
time of his father's demise, to wit, the
policy dated 29.09.2014. Later on, a policy
for
compassionate
appointment
was
introduced in the employer's establishment
vide amended Circular dated 31.08.2016
providing that in the event of death of an
employee
in
the
work
charged
establishment, one of his heirs/ dependents
would be eligible for appointment on
compassionate grounds.

21. The writ petitioner instituted a
petition in the High Court, which came to
be decided in terms of a direction to the
employers to decide the writ petitioner's
representation in accordance with law. To
avail of the directions, the writ petitioner
made an application to the employer, which
was rejected by an order dated 15.03.2017
on ground that the Policy/ Circular dated
31.08.2016 was applicable prospectively,
that is to say, w.e.f. 22.12.2016, whereas
the employee, on account of whose death
the writ petitioner claimed compassionate
appointment, passed away on 08.10.2015.
This led the writ petitioner to institute
another writ petitioner before the High
Court. It was dismissed by the learned
Single Judge holding that the Policy in
force at the time of demise of the employee
in the work charged establishment would
govern the right of his dependents to
compassionate
appointment
and
any
subsequent Policy would not apply.

22. The writ petitioner carried the
matter in appeal to the Division Bench. The
Division Bench allowed the appeal and
directed the appellant to consider the writ
petitioner's
case
for
appointment
on
compassionate grounds relying upon the
Policy/ Circular dated 31.08.2016.

23. In Appeal by Special Leave
carried by the State of Madhya Pradesh,
negativing the writ petitioner's contention,
it was held by their Lordships:

"5. As per the settled proposition
of law laid down by this Court for
appointment on compassionate ground, the
policy prevalent at the time of death of the
deceased employee only is required to be
considered and not the subsequent policy.

6. In Indian Bank v. Promila
[Indian Bank v. Promila, (2020) 2 SCC 729
: (2020) 1 SCC (L&S) 312] , it is observed
and held that claim for compassionate
appointment must be decided only on the
basis of relevant scheme prevalent on date
of demise of the employee and subsequent
scheme cannot be looked into. Similar view
has been taken by this Court in State of
M.P. v. Amit Shrivas [State of M.P. v. Amit
Shrivas, (2020) 10 SCC 496 : (2021) 1 SCC
(L&S) 68] . It is required to be noted that
in Amit Shrivas [State of M.P. v. Amit
Shrivas, (2020) 10 SCC 496 : (2021) 1 SCC
(L&S) 68] the very scheme applicable in
the present case was under consideration
and it was held that the scheme prevalent
on the date of death of the deceased
employee is only to be considered. In that
view of the matter, the impugned judgment
and order [Ashish Awasthi v. State of M.P.,
2018 SCC OnLine MP 1824] passed by the
Division Bench is unsustainable and
deserves to be quashed and set aside."
8 All.